ITO, Wd-1(3), Kolkata, Kolkata V. M/s Midas DFS (P) Ltd., Howrah

MA 82/KOL/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6305 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-02-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 17-05-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

, C , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C KOLKATA BEFORE SHRI N.V.VASUDEVAN, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER (MISC. APPLICATION) M.ANO.82/KOL/2017 (ARISING OUT ITA NO.2666/KOL/2013) / ASSESSMENT YEAR:2009-10 ITO WARD-1(3), P-7, CHOWRINGHEE SQUARE, AAYAKAR BHAWAN, KOLKATA-69 / V/S . M/S MIDAS DFS (P) LTD., 103/24/1, BINANI METAL COMPOUND, FORESHORE ROAD, HOWRAH-711 102 [ PAN NO. AAFCM 0353 G ] (ORIGINAL RESPONDENT) (ORIGINAL APPELLANT) (APPLICANT) .. (RESPONDENT) / BY APPLICANT SHRI, SALLONG YADDEN, ADDL. CIT DR !' / BY RESPONDENT SHRI SUBASH AGRWAL, ADVOCATE / DATE OF HEARING 12-01-2018 / DATE OF PRONOUNCEMENT 07-02-2018 / ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER:- BY THIS MISCELLANEOUS APPLICATION (MA) THE REVENUE HAS REQUESTED FOR SEEKING RECALL OF EX PARTE TRIBUNAL ORDER PASSED BY TRIBUNAL WITHOUT HEARING REVENUE DATED 18-01-2017 ALLOWED THE APPEAL OF ASSE SSEE BEING ITA NO.2666/KOL/2013 . 2. THE LD. DR BEFORE US SUBMITTED THAT IN THE INST ANT CASE, THE APPEAL WAS FIXED FOR HEARING ON 15.11.2016 BUT ON THAT DATE NO BODY WAS PRESENT ON BEHALF OF REVENUE NOR ANY ADJOURNMENT PETITION WAS FILED O N ACCOUNT OF SUDDEN ILLNESS OF SHRI, RAJAT KR. KUREEL, JCIT, SENIOR DR. THEREFORE THE IMPUGNED EX PARTE ORDER SHOULD BE RECALLED AND AN OPPORTUNITY O F BEING HEARD SHOULD BE PROVIDED TO THE REVENUE. MA NO.82/KOL/2017 ITO WD-13(3), KOL. VS. M/S MIDAS DFS(P) LT D., PA GE 2 ON THE OTHER HAND, LD. AR FOR THE ASSESSEE SUBMITTE D THAT THE HON'BLE ITAT HAS ADJUDICATED THE IMPUGNED ISSUE AFTER CONSIDERIN G THE MATERIALS AVAILABLE ON RECORD. THEREFORE, THERE IS NO MISTAKE APPARENT FROM THE RECORD AS ENVISAGED UNDER THE PROVISION OF SECTION 254(2) OF THE INCOME TAX APPELLATE TRIBUNAL ACT, 1963. THUS, LD. AR OPPOSED FOR RECALL ING THE IMPUGNED TRIBUNAL ORDER AND HE RELIED ON THE ORDER OF TRIBUNAL. 3. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS UNDISPUTED FACT THAT APPEAL WAS DECIDED EX PARTE QUA REVENUE AND AFTER HEARING THE LD. AR FOR THE ASSESSEE. LD. DR WAS ABSENT DUE TO SUDDEN ILLNESS. THEREFORE, IN OUR CON SIDERED VIEW THERE WAS A JUSTIFIABLE AND VALID REASON ON THE PART OF REVENUE WHICH PREVENTED IT TO APPEAR ON THE DATE OF HEARING. IN THIS REGARD, WE N OTE THAT THE RULE 24 OF THE INCOME TAX APPELLATE TRIBUNAL RULE, 1963 REQUIRE TO RESTORE THE EX-PARTE ORDER AFTER BEING SATISFIED WITH THE REASONS OF NON -APPEARANCE OF PARTY. THE RELEVANT PORTION OF THE SAID RULE REPRODUCED BELOW: - [ HEARING OF APPEAL EX PARTE FOR DEFAULT BY THE APPEL LANT 24 . WHERE, ON THE DAY FIXED FOR HEARING OR ON ANY OTH ER DATE TO WHICH THE HEARING MAY BE ADJOURNED, THE APPELLANT DOES NOT AP PEAR IN PERSON OR THROUGH AN AUTHORISED REPRESENTATIVE WHEN THE APPEA L IS CALLED ON FOR HEARING, THE TRIBUNAL MAY DISPOSE OF THE APPEAL ON MERITS A FTER HEARING THE RESPONDENT: PROVIDED THAT WHERE AN APPEAL HAS BEEN DISPOSED OF AS PROVI DED ABOVE AND THE APPELLANT APPEAR AFTERWARDS AND SATISFIES THE T RIBUNAL THAT THERE WAS SUFFICIENT CAUSE FOR HIS NON-APPEARANCE, WHEN THE A PPEAL WAS CALLED ON FOR HEARING, THE TRIBUNAL SHALL MAKE AN ORDER SETTING A SIDE THE EX PARTE ORDER AND RESTORING THE APPEAL.] A PLAIN LOOK AT THE ABOVE STATUTORY PROVISION MAKES IT CLEAR, THAT THE ORDER SHOULD BE RECALLED IF THERE WAS SUFFICIENT CAUSE FO R THE NON APPEARANCE. IN THE INSTANT CASE THE LD. DR FAILED TO APPEAR ON THE DAT E OF HEARING DUE TO SUDDEN ILLNESS. ACCORDINGLY WE OBSERVE THAT THERE WAS SUFF ICIENT CAUSE FOR NON- APPEARANCE ON THE PART OF LD. DR. THEREFORE, WE ARE INCLINED TO RECALL THE IMPUGNED TRIBUNAL EX-PARTE ORDER AND FIX THE SAME O N 19.03.2018 . BOTH THE PARTIES WERE DIRECTED TO TAKE THE NOTE OF THE DATE OF HEARING AS THE SAME WAS MA NO.82/KOL/2017 ITO WD-13(3), KOL. VS. M/S MIDAS DFS(P) LT D., PA GE 3 PRONOUNCED IN THE OPEN COURT. NO SEPARATE NOTICE FO R HEARING THE CASE SHALL BE SERVED ON ANY OF THE PARTY. HENCE, MA OF REVENUE IS ALLOWED. 4. IN THE RESULT, MA OF REVENUE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT I.E. 07/02/2018 SD/- SD/- ( () ( () (N.V.VASUDEVAN) (WASEE M AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP *- 07/02 /201 8 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT- ITO WARD-1(3), P-7, CHOWRINGHEE SQUARE, AAYYAKAR BHAWAN, KOLKATA-69 2. !' /RESPONDENT-M/S MIDAS DFS (P) LTD., 103/24/1, BINAN I METAL COMPOUND, FORESHORE RD. HOWRAH-711102 3. 5 6 / CONCERNED CIT 4. 6- / CIT (A) 5. !5, 5, KOLKATA / DR, ITAT, KOLKATA 6. / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY HEAD OF OFFICE/DDO 5,