Shri. Mohammed Imran, Bengaluru V. Assistant Commissioner of Income Tax, Circle - 1(2)(1), Bengaluru

MA 75/BANG/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1933 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 3 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: misc
• Appeal Filed On: 20-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P V PRADEEP KUMAR
• Assessee Lawyers: G SATHYANARAYANA
• Keywords: Question of law; Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER M.P. NO. 75/BANG/2018 (IN ITA NO. 1 193 / BANG/201 7 ) ASSESSMENT YEAR : 20 12 - 13 SHRI MOHAMMED IMRAN, NO. 827, 5 TH BLOCK, 6 TH CROSS, HBR LAYOUT, BANASWADI, BANGALORE 560 043. PAN: AQAPM6283H VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1 (2) (1), BANGALORE. APPELLANT RESPONDENT ASSESSEE BY : SHRI G. SATHYANARAYANA , CA REVENUE BY : DR. P.V. PRADEEP KUMAR, ADDL. CIT (DR) DATE OF HEARING : 21 . 0 6 .201 9 DATE OF PRONOUNCEMENT : 28 . 0 6 .201 9 O R D E R PER SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER; THIS M.P. IS FILED BY THE ASSESSEE SEEKING RECALL OF EX-PARTE TRIBUNAL ORDER DATED 15.11.2017. 2. IN COURSE OF HEARING, IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT ALTHOUGH IN PARA NO. 3 OF THE IMPUGNED TRIBUNAL ORDER, THIS IS STATED THAT THE ASSESSEE DID NOT APPEAR DESPITE SERVICE OF NOTICE OF HEARING BUT THE FACT IS THAT NO NOTICE OF HEARING WAS SERVED ON THE ASSESSEE. IN SUPPORT OF HIS CONTENTION, HE SUBMITTED AN AFFIDAVIT OF THE ASSESSEE AND POINTED OUT THAT IN PARA NO. 2 OF THE AFFIDAVIT, IT IS STATED BY THE ASSESSEE THAT HE HAS NOT RECEIVED ANY NOTICE OF HEARING OR THE TRIBUNAL ORDER PASSED ON 15.11.2017 IN THE PRESENT APPEAL BEING ITA NO. 1193/BANG/2017. HE SUBMITTED THAT UNDER THESE FACTS, IT SHOULD BE ACCEPTED THAT AS PER RULE 25 OF ITAT RULES, 1963, THIS EX-PARTE M.P. NO. 75/BANG/2018 (IN ITA NO. 1193/BANG/2017) PAGE 2 OF 4 TRIBUNAL ORDER SHOULD BE RECALLED BECAUSE THE ASSESSEE HAS POINTED OUT REASONABLE CAUSE FOR NON-APPEARANCE ON THE FIXED DATE OF HEARING BEFORE THE TRIBUNAL. AS AGAINST THIS, THE LD. DR OF REVENUE SUBMITTED THAT THIS TRIBUNAL ORDER SHOULD NOT BE RECALLED. HE PLACED RELIANCE ON THE JUDGMENT OF HONBLE MADRAS HIGH COURT RENDERED IN THE CASE OF SMT. RITHA SABAPATHY VS. DCIT AS REPORTED IN [2019] 263 TAXMAN 84 (MADRAS) AND HE SUBMITTED A COPY OF THIS JUDGMENT OF HONBLE MADRAS HIGH COURT. HE ALSO SUBMITTED THAT IN THE IMPUGNED ORDER, THE TRIBUNAL HAS DECIDED THE ISSUE ON MERIT AND HAS NOT DISMISSED THE APPEAL IN LIMINE AND THEREFORE, THIS TRIBUNAL ORDER SHOULD NOT BE RECALLED. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. FIRST OF ALL, WE REPRODUCE RULE 25 OF ITAT RULES, 1963. THE SAME IS AS UNDER. 25. WHERE, ON THE DAY FIXED FOR HEARING OR ANY OTHER DAY TO WHICH THE HEARING MAY BE ADJOURNED, THE APPELLANT APPEARS AND THE RESPONDENT DOES NOT APPEAR IN PERSON OR THROUGH AN AUTHORISED REPRESENTATIVE WHEN THE APPEAL IS CALLED ON FOR HEARING, THE TRIBUNAL MAY DISPOSE OF THE APPEAL ON MERITS AFTER HEARING THE APPELLANT :] [ PROVIDED THAT WHERE AN APPEAL HAS BEEN DISPOSED OF AS PROVIDED ABOVE AND THE [RESPONDENT] APPEARS AFTERWARDS AND SATISFIES THE TRIBUNAL THAT THERE WAS SUFFICIENT CAUSE FOR HIS NON-APPEARANCE WHEN THE APPEAL WAS CALLED ON FOR HEARING, THE TRIBUNAL SHALL MAKE AN ORDER SETTING ASIDE THE EX PARTE ORDER AND RESTORE THE APPEAL]. 4. FROM THE ABOVE RULE, IT COMES OUT THAT IF THE RESPONDENT DOES NOT APPEAR IN COURSE OF HEARING OF THE APPEAL, THE TRIBUNAL MAY DISPOSE OF THE APPEAL ON MERITS AFTER HEARING THE APPELLANT AS HAS BEEN DONE BY THE TRIBUNAL IN THE PRESENT CASE. AS PER THE PROVISO INSERTED IN THIS RULE BY THE IT (APPELLATE TRIBUNAL) (AMENDMENT) RULES, 2002, W.E.F. 08-04-2002, IF THE TRIBUNAL HAS DISPOSED OF ANY APPEAL AS PROVIDED IN RULE 25 REPRODUCED ABOVE AND THE RESPONDENT APPEARS AFTERWARDS AND SATISFIES THE TRIBUNAL THAT THERE WAS SUFFICIENT CAUSE FOR HIS NON-APPEARANCE WHEN THE APPEAL WAS CALLED ON FOR HEARING, THE TRIBUNAL SHALL MAKE AN ORDER SETTING ASIDE THE EX-PARTE ORDER AND RESTORE THE APPEAL. HENCE AS PER THE RULE 25 AND ITS PROVISO, IT COMES OUT THAT AS PER THIS RULE, THE TRIBUNAL CAN DECIDE THE APPEAL EX-PARTE QUA THE M.P. NO. 75/BANG/2018 (IN ITA NO. 1193/BANG/2017) PAGE 3 OF 4 RESPONDENT. BUT THE TRIBUNAL SHOULD DECIDE THE ISSUE ON MERIT AFTER HEARING THE APPELLANT AND IN THAT CASE, IF LATER ON, THE RESPONDENT APPEARS AND SATISFIES THE TRIBUNAL THAT HIS NON-APPEARANCE WAS BECAUSE OF REASONABLE CAUSE AND THE TRIBUNAL IS SATISFIED ABOUT THAT THEN SUCH EX-PARTE TRIBUNAL ORDER SHOULD BE RECALLED BY THE TRIBUNAL. HENCE THERE IS NO MERIT IN THIS ARGUMENT OF LD. DR OF REVENUE THAT SINCE AS PER THE IMPUGNED TRIBUNAL ORDER, THE APPEAL WAS DECIDED ON MERIT, THIS EX-PARTE TRIBUNAL ORDER SHOULD NOT BE RECALLED. SIMILARLY, RELIANCE PLACED BY LD. DR OF REVENUE ON THE JUDGMENT OF HONBLE MADRAS HIGH COURT RENDERED IN THE CASE OF SMT. RITHA SABAPATHY VS. DCIT (SUPRA), IS MISPLACED BECAUSE AS PER THIS JUDGMENT, THIS WAS HELD BY HONBLE MADRAS HIGH COURT THAT IF THE APPELLANT DOES NOT APPEAR BEFORE THE TRIBUNAL, THEN ALSO, THE TRIBUNAL HAS TO DECIDE THE APPEAL ON MERIT. IN THAT CASE, THIS WAS THE QUESTION RAISED BEFORE HONBLE MADRAS HIGH COURT THAT IF THE APPEAL IS DECIDED BY THE TRIBUNAL ON THE GROUND OF NON-APPEARANCE WITHOUT DISPOSING OF THE APPEAL ON MERIT OF THE CASE AS PRESCRIBED UNDER RULE 24 OF ITAT RULES, 1963, THEN WHETHER THE TRIBUNAL WAS RIGHT IN LAW IN DOING SO AND THIS QUESTION OF LAW WAS DECIDED BY HONBLE MADRAS HIGH COURT AND IT WAS HELD THAT THIS TRIBUNAL ORDER IS NOT PROPER AND THE MATTER WAS RESTORED BACK TO THE TRIBUNAL TO DECIDE THE APPEAL ON MERIT AFRESH IN ACCORDANCE WITH LAW. IN OUR CONSIDERED OPINION, THIS JUDGMENT OF HONBLE MADRAS HIGH COURT IS NOT APPLICABLE IN THE PRESENT CASE THIS JUDGMENT TALKS ABOUT DECISION OF TRIBUNAL ON MERIT EVEN IF THE APPELLANT OR RESPONDENT DOES NOT APPEAR AND THERE IS NO DISCUSSION OR DECISION ABOUT THE PROVISO FOR RECALLING OF SUCH EXPARTE TRIBUNAL ORDER. 5. NOW WE EXAMINE AND DECIDE AS TO WHETHER THE ASSESSEE COULD SHOW REASONABLE CAUSE IN RESPECT OF NON-APPEARANCE ON THE APPOINTED DATE OF HEARING AND IN THIS REGARD, WE FIND THAT ALTHOUGH IT IS STATED BY THE TRIBUNAL IN PARA 3 OF THE IMPUGNED TRIBUNAL ORDER THAT THE ASSESSEE DID NOT APPEAR IN SPITE OF SERVICE OF NOTICE OF HEARING BUT IN THE APPEAL FOLDER, THERE IS NO EVIDENCE REGARDING SERVICE OF NOTICE ON THE ASSESSEE. WE FIND THAT THIS APPEAL WAS FIXED FOR HEARING FOR THE FIRST TIME ON 13.09.2017 AND ALTHOUGH THE M.P. NO. 75/BANG/2018 (IN ITA NO. 1193/BANG/2017) PAGE 4 OF 4 NOTICE OF HEARING WAS SENT TO THE ASSESSEE BUT THERE IS NO EVIDENCE AVAILABLE ON RECORD REGARDING SERVICE OF THIS NOTICE IN RESPECT OF THIS DATE OF HEARING FIXED ON 13.09.2017. ON THIS DATE, I.E. ON 13.09.2017, NONE APPEARED ON BEHALF OF THE ASSESSEE AND THE LD. DR OF REVENUE MOVED AN APPLICATION FOR ADJOURNMENT AND ON HIS REQUEST, THE HEARING WAS ADJOURNED TO 02.11.2017. NOTICE OF HEARING FIXED ON 02.11.2017 WAS SENT TO THE ASSESSEE BY RPAD ON 24.10.2017 AS PER THE COPY OF NOTICE AVAILABLE ON RECORD BUT THERE IS NO EVIDENCE AVAILABLE ON RECORD REGARDING SERVICE OF THIS NOTICE ON THE ASSESSEE THE ASSESSEE HAS SUBMITTED AN AFFIDAVIT IN COURSE OF M.P. PROCEEDINGS THAT THE NOTICE OF HEARING WAS SERVED ON THE ASSESSEE AND UNDER THESE FACTS, WE FEEL THAT THERE WAS REASONABLE CAUSE FOR NON-APPEARANCE OF THE ASSESSEE ON THE APPOINTED DATE OF HEARING I.E. 02.11.2017 AND HENCE, IN VIEW OF RULE 25 OF ITAT RULES, 1963, WE RECALL THIS EX-PARTE TRIBUNAL ORDER AND DIRECT THE REGISTRY TO FIX THIS APPEAL FOR HEARING IN DUE COURSE AND BOTH SIDES SHOULD BE INFORMED BY WAY OF RPAD NOTICE. 6. IN THE RESULT, THE M.P. FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- (PAVAN KUMAR GADALE) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 28 TH JUNE, 2019. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.