Nirmal Bajaj, Ludhiana V. DCIT, Ludhiana

MA 79/CHANDI/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5527 (ITAT-CHANDIGARH)
• Duration Of Justice: 10 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2001-2002
• Appeal Filed On: 02-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER MA NO.78/CHD/2016 (IN ITA NO. 1242/CHD/2010) ( ASSESSMENT YEAR 2001-02) PREETI BAJAJ, VS THE DCIT, C-62, FOCAL POINT, CIRCLE VI, PHASE V, LUDHIANA. LUDHIANA. PAN : AFVPB6764N & MA NO.79/CHD/2016 (IN ITA NO. 1243/CHD/2010) (ASSESSMENT YEAR 2001-02) SHRI NIRMAL BAJAJ, VS THE DCIT, C-62, FOCAL POINT, CIRCLE VI, PHASE V, LUDHIANA. LUDHIANA. PAN : ABJPB4766G (APPLIICANT) (RESPONDENT) APPLICANT BY : SHRI SARABJIT GARG RESPONDENT BY : SHRI MANJIT SINGH, DR DATE OF HEARING : 21.04.2017 DATE OF PRONOUNCEMENT : 21.04.2017 ORDER PER SANJAY GARG, JUDICIAL MEMBER : THESE TWO MISCELLANEOUS APPLICATIONS HAVE BEEN MOVED BY THE APPLICANTS/ASSESSEES FOR RECALLING OF COMMON ORDER DATED 30.4.2013 PASSED IN ITA NOS.1242 & 1243/CHD/2010 RELATING TO ASSESSMENT YEAR 2001-02. THE RECALLING OF THE ORDER DATED 30.4.2013 HAS BEEN SOU GHT ON TWO GROUNDS; FIRSTLY THAT THE NON-APPEARANCE OF THE APPLICANTS/ASSESSEES ON THE FIXED DATE OF HEARIN G BEFORE 2 THE TRIBUNAL WAS NOT INTENTIONAL AND THAT THE APPLICANTS/ASSESSES WERE PREVENTED BY SUFFICIENT CA USE FROM APPEARING BEFORE THE TRIBUNAL ON THE DATE OF H EARING; SECONDLY THAT A MISTAKE APPARENT ON RECORD HAS OCCU RRED IN THE ORDER OF THE TRIBUNAL DATED 30.4.2013 BECAUS E OF THE FACT THAT THE APPEALS HAVE BEEN DISMISSED FOR W ANT OF PROSECUTION AND THAT THE SAME HAVE NOT BEEN DECIDED ON MERITS AS REQUIRED UNDER RULE 24 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963. THE LD. COUNSEL FOR ASSESSEE, IN THIS RESPECT, HAS RELIED UPON THE DECI SION OF THE HON'BLE SUPREME COURT IN THE CASE OF BALAJI ST EEL RE- ROLLING MILLS VS. COMMISSIONER OF CENTRAL EXCISE & CUSTOMS IN CIVIL APPEAL NO.10265 OF 2014 VIDE ORDE R DATED NOVEMBER 14, 2014. 2. THE LD. DR, ON THE OTHER HAND, HAS OBJECTED TO THE ABOVE MISCELLANEOUS APPLICATIONS OF THE APPLICANTS/ASSESSES PLEADING THAT THE APPLICANTS/AS SESSES HAD MOVED IDENTICAL PETITIONS BEARING MA NOS.56 & 57/CHD/2013 FOR RESTORATION OF THE ABOVE STATED AP PEALS. HOWEVER, THE ASSESSEE AGAIN FAILED TO APPEAR ON THE DATE FIXED FOR HEARING IN THOSE MISCELLANEOUS APPLICATIO NS AND THE SAME WERE ACCORDINGLY DISMISSED BY THE TRIBUNAL VIDE ORDER DATED 23.12.2013. HE HAS FURTHER SUBMITTED TH AT EVEN THEREAFTER THE ASSESSEE MOVED ANOTHER PETITION S BEARING MA NOS.16 & 17/CHD/2016 WHICH WERE ALLOWED TO BE WITHDRAWN BY THE TRIBUNAL WITH PERMISSION TO THE 3 ASSESSEE TO FILE FRESH MISCELLANEOUS APPLICATIONS, IF SO ADVISED, IN ACCORDANCE WITH LAW. THE LD. DR, THERE FORE, HAS STATED THAT THE PRESENT MISCELLANEOUS APPLICATI ONS ARE MISCONCEIVED AND ARE REQUIRED TO BE DISMISSED AT TH IS STAGE. 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE ALSO GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. FROM THE RECORD, IT IS GATHERED THAT THE APPEALS OF THE APPLICANTS/ASSESSES WERE DISMISSED VIDE ORDER DATED 30.4.2013 FOR WANT OF PROSECUTION AND THE GROUNDS O F APPEAL WERE NOT ADJUDICATED ON MERITS. THEREAFTER THE APPLICANTS/ASSESSES FILED MISCELLANEOUS APPLICATION S FOR RESTORATION OF THEIR APPEALS. HOWEVER, THE APPLICANTS/ASSESSES AGAIN FAILED TO PRESENT THEMSEL VES BEFORE THE TRIBUNAL ON THE DATE OF HEARING OF THOSE MISCELLANEOUS APPLICATIONS AND THE SAME WERE ACCORD INGLY DISMISSED. THEREAFTER THE APPLICANTS/ASSESSES MOVED RECTIFICATION PETITIONS U/S 254(2) R.W.R. 34A AND R ULE 24 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 PLE ADING THAT THE APPEALS OF THE ASSESSES WERE REQUIRED TO B E DECIDED ON MERITS EVEN IN THE ABSENCE OF THE ASSESS ES OR THEIR REPRESENTATIVES ON THE FIXED DATE OF HEARING. IT HAD BEEN FURTHER PLEADED THEREIN THAT OTHER APPEALS IN IDENTICAL MATTERS INVOLVING IDENTICAL ISSUES HAVE A LREADY BEEN DECIDED IN FAVOUR OF THE RESPECTIVE ASSESSES. THE SAID MISCELLANEOUS APPLICATIONS OF APPLICANTS/ASSES SES 4 WERE ORDERED TO BE DISMISSED AS WITHDRAWN WITH PERMISSION TO THE APPLICANTS TO FILE AFRESH MISCELL ANEOUS APPLICATIONS. 4. NOW THE ASSESSEE-APPLICANTS HAVE COME UP WITH THE PRESENT PETITIONS. WE FIND THAT THE PRESENT RECTIFICATION PETITIONS ARE WITHIN THE PERIOD OF LI MITATION FROM THE DATE OF DISMISSAL OF THE APPEALS AS PROVID ED UNDER THE PROVISIONS OF SECTION 254(2) OF THE ACT ( AS WAS IN FORCE FOR THE RELEVANT PERIOD. NO DOUBT, THE EA RLIER PETITIONS BEARING MA NOS.56 & 57/CHD/2013 OF THE APPLICANTS/ASSESSES WERE DISMISSED FOR WANT OF PROSECUTION. HOWEVER, THE SAID PETITIONS WERE NOT DECIDED ON MERITS. HENCE THE DISMISSAL OF THE SAID MISCELL ANEOUS APPLICATIONS BEARING NOS.56 & 57/CHD/2013, IN OUR V IEW, DOES NOT BAR THE MOVING OF FRESH APPLICATIONS AS TH E SAME IS NOT HIT BY PRINCIPLE OF RES-JUDICATA. THE ANOTH ER PETITIONS BEARING MA NOS.16 & 17/CHD/2016 HAVE BEEN DISMISSED AS WITHDRAWN WITH PERMISSION TO FILE AFRE SH. HENCE, UNDER THE CIRCUMSTANCES, THERE IS NO BAR TO THE ASSESSEES IN MOVING THE PRESENT MISCELLANEOUS APPLICATIONS, WHICH HAVE BEEN MOVED WITHIN THE PERI OD OF LIMITATION. THE ADJUDICATION OF THESE MISCELLANEOUS APPLICATIONS, IN OUR VIEW, IS ALSO NOT BARRED AS TH E ISSUES ARISING OUT FROM THE PLEADINGS IN THESE PETITIONS H AVE NEVER BEEN DECIDED ON MERITS. SO WE HOLD THAT THE PRESENT PETITIONS MOVED BY THE APPLICANTS/ASSESSES ARE MAINTAINABLE. 5 5. NOW COMING TO THE FACTS OF THE CASE, IT HAS BEE N PLEADED BY THE APPLICANTS/ASSESSES THAT THEIR NON- APPEARANCE WAS NOT INTENTIONAL; RATHER THEY WERE PREVENTED BY SUFFICIENT CAUSE. IT HAS BEEN PLEADED THAT THE ADJOURNMENT LETTER COULD NOT BE SENT ON SCHEDUL ED DATE I.E. 30.4.2013 DUE TO INADVERTENT ERROR IN NOT ING THE FAX NUMBER BY THE ASSISTANT OF THE ARGUING COUNSEL MR.KAPIL GOEL, ADVOCATE. LATER ON WHEN THE MISTAKE WAS NOTED, IMMEDIATELY THE ADJOURNMENT LETTER WAS SENT BUT BY THAT TIME, THE BENCH HAD ALREADY DECIDED THE MATTER EX- PARTE BY DISMISSING THE APPEALS OF THE ASSESSEE FOR WANT OF PROSECUTION WITHOUT GOING INTO THE MERITS OF THE CASE. 6. WE HAVE GONE THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF BALAJI STEEL RE-ROLLIN G MILLS (SUPRA), WHEREIN, THE HON'BLE SUPREME COURT HAS REL IED UPON ITS EARLIER DECISION IN THE CASE OF CIT, MADR AS VS. S.CHENNIAPPA MUDALIAR, MADURAI 1969 (1) SCC 591, WHEREIN THE HON'BLE SUPREME COURT HAS DISCUSSED THE PROVISIONS OF SECTION 33(4) OF THE INCOME TAX ACT, 1922, WHICH ARE IN PARAMATRIA TO THE PROVISIONS OF SECTIO N 254 OF THE INCOME TAX ACT, 1961, HAS HELD THAT THE APPE LLATE TRIBUNAL IS BOUND TO GIVE A PROPER DECISION ON QUES TION OF FACT AS WELL AS LAW WHICH CAN ONLY BE DONE IF THE A PPEAL IS DISPOSED OFF ON THE MERITS AND NOT DISMISSED OWING TO THE ABSENCE OF THE APPLICANT. IT HAS BEEN FURTHER HELD THAT THE TRIBUNAL OUGHT TO HAVE DECIDED THE APPEALS ON M ERITS 6 EVEN IF THE APPLICANT OR ITS COUNSEL WAS NOT PRESEN T WHEN THE APPEAL WAS TAKEN UP FOR HEARING AND THE SAME SH OULD NOT HAVE BEEN DISMISSED FOR WANT OF PROSECUTION. 7. FURTHER AS PER THE PROVISIONS OF RULE 24 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963, IT HAS BEEN PROVIDED THAT WHERE ON THE DATE FIXED FOR HEARING, THE APPLICANT DOES NOT APPEAR IN PERSON OR THROUGH AN AUTHORIZED REPRESENTATIVE, THE TRIBUNAL MAY DISPOSE OFF THE APPEAL ON MERITS AFTER HEARING THE RESPONDENT. 8. UNDER THE CIRCUMSTANCES, WHEN RULE 24 OF THE I.T.A.T. RULES IS READ WITH THE DECISION OF THE HON 'BLE SUPREME COURT IN THE CASE OF BALAJI STEEL RE-ROLLIN G MILLS (SUPRA), IT MAY BE SAFELY CONCLUDED THAT AN ERROR A PPARENT ON RECORD HAS OCCURRED IN THE ORDER OF THE TRIBUNAL DATED 23.12.2013 WHILE DISMISSING THE APPEALS OF THE APPLICANTS/ASSESSES FOR WANT OF PROSECUTION WITHOUT TOUCHING THE MERITS OF THE CASE. IN VIEW OF THE AB OVE DISCUSSION, THE COMMON ORDER DATED 30.4.2013 PASSED IN ITA NOS.1242 & 1243/CHD/2010 FOR ASSESSMENT YEAR 2001-02 IS RECALLED AND THE SAID APPEALS ARE RESTOR ED TO THEIR ORIGINAL POSITION WITH THE SAME NUMBERS. THE REGISTRY IS DIRECTED TO FIX HEARING OF THESE APPEAL S IN REGULAR COURSE WITH DUE INTIMATION TO THE ASSESSEES . A COPY OF THIS ORDER BE PLACED IN THE RESPECTIVE APPE AL FILES FOR RECORD AND READY REFERENCE. 7 9. WITH THE ABOVE OBSERVATIONS, THE CAPTIONED MISCELLANEOUS APPLICATIONS OF THE APPLICANTS/ASSESS ES ARE HEREBY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 21.04,2017. SD/- SD/- (ANNAPURNA GUPTA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 19 TH MAY, 2017 *RATI* COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSISTANT REGISTRAR, ITAT, CHANDIGARH