Nirmal Bajaj, Ludhiana V. Dy Commissioner of Income Tax, Ludhiana

MA 83/CHANDI/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5933 (ITAT-CHANDIGARH)
• Duration Of Justice: 10 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2001-2002
• Appeal Filed On: 15-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Assessee Lawyers: SAARBJIT GARG
• Keywords: Bonafide belief
• Section: 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCH SMC CHANDIGARH !', # BEFORE: SMT. DIVA SINGH, JM M.A. NO. 83/CHD/2018 IN ITA NO. 171/CHD/2017 / ASSESSMENT YEAR : 2001-02 SHRI NIRMAL BAJAJ, 70A, SHASTRI NAGAR, LUDHIANA. VS THE DCIT, CIRCLE 6 LUDHIANA. ./ PAN NO. :ABJPB4766G / APPELLANT / RESPONDENT & M.A. NO. 90/CHD/2018 IN ITA NO. 172/CHD/2017 / ASSESSMENT YEAR : 2001-02 MS. PREETI BAJAJ, 2746/1, GURDEV NAGAR, LUDHIANA. VS THE DCIT, CIRCLE 6 LUDHIANA. ./ PAN NO. :AFVPB6764N / APPELLANT / RESPONDENT / ASSESSEE BY : SHRI SAARBJIT GARG, CA / REVENUE BY : SHRI MANJIT SINGH, SR.DR ! ' / DATE OF HEARING : 15.01.2019 #$%& ' / DATE OF PRONOUNCEMENT : 23.01.2019 $%/ ORDER BY THE PRESENT MISCELLANEOUS APPLICATIONS U/S 254(2) OF TH E INCOME TAX ACT,1961, THE ASSESSEES PRAYS FOR RECALL OF THE SEPARATE EX-PARTE ORDERS DATED 31.10.2017 AND 28.09.2017 IN ITA 171/CHD/2017 AND ITA 1 72/CHD/2017 RESPECTIVELY PERTAINING TO 2001-02 ASSESSMENT YEAR. SIN CE FACTS, CIRCUMSTANCES AND THE ARGUMENTS OF THE PARTIES IN VIEW O F IDENTICAL FACTS REMAINS THE SAME, ACCORDINGLY, A COMMON ORDER IN BOTH TH E APPLICATIONS FILED BY THE ASSESSEES IS BEING PASSED. AT THE COST OF REPRE SENTATION, IT WAS A COMMON STAND OF THE PARTIES BEFORE THE BENCH THAT THE ARGUMENTS WOULD REMAIN THE SAME IN BOTH THE APPLICATIONS. 2. IN THE SAID BACKGROUND, THE LD. AR INVITING ATTENTION TO THE IDENTICAL ORDERS IN THE CONNECTED CASES SUBMITTED THAT THE ASSE SSEE IN THE FACTS OF THE PRESENT CASE HAD BEEN SEEKING ADJOURNMENTS ON THE DA TES MENTIONED IN THE M.A. 83 & 90/CHD/2018 IN ITA 171 & 172/CHD/2017 PAGE 2 OF 2 ORDERS ON THE GROUNDS THAT THE QUANTUM APPEAL WAS ST ATED TO BE PENDING. ON THE SAID GROUND, ADJOURNMENTS HAD BEEN GRANTED TO THE ASSESSEES. ONLY ON ACCOUNT OF THE FACT THE ASSESSEE ON THE LAST DATE OF H EARING I.E. 08.08.2017 IN BOTH THE APPEALS FAILED TO APPEAR BEING OF THE VIEW THAT ADJOURNMENT WOULD BE GRANTED, THE APPEALS WERE DISMISSED. THE BASIS FOR THE BONAFIDE BELIEF, IT WAS SUBMITTED, WAS THE APPLICATION DATED 26.05.2017 AND 06 .07.2017 WHICH HAD BEEN CONSIDERED BY THE ITAT ON THE EARLIER OCCASIO NS FOR GRANT OF ADJOURNMENT. IT WAS SUBMITTED THAT IN THE SAID APPLICAT ION, IT HAD BEEN STATED THAT : MOST RESPECTFULLY AND HUMBLY SUBMITTED THAT THIS A PPEAL IS AGAINST PENALTY U/S 271(1)(C). HOWEVER, THIS HON'BLE BENCH HAS BEEN KIND ENOUGH TO RESTORE THE QUANTUM APPEAL OF THE ASSESSEE AGAINST ORDER U/S 148 FILED VIDE ITA NO 12 42/CHD/10, IN RESPONSE TO M.A, NO. 78/CHD/2016 VIDE ORDER PRONOUNCED M OPEN COURT ON 21.04,2017. HOWEVER HEARING OF THE RESTORED APPEAL IS YET TO BE FIXED BY THIS HON'BLE BENCH. 3. ACCORDINGLY, IT WAS HIS PRAYER THAT NOW THAT THE ORDE RS IN THE QUANTUM APPEALS HAVE BEEN PASSED BY THE DIVISION BENCH IN ITA 12 42/CHD/2010 AND ITA 1243/CHD/2010 ON 09.07.2018, ACCORDINGLY, THE PENALTY ORDER IN THE CIRCUMSTANCES CANNOT SURVIVE. IN VIEW OF THIS, THE ORDER DISMISSING THE APPEALS FOR NON-REPRESENTATION MAY BE RECALLED. COPY OF TH E ORDER IN THE QUANTUM PROCEEDINGS WAS FILED IN THE COURT. IT WAS HIS S UBMISSION THAT SINCE HE WAS COMING FROM OUT OF STATION, THE APPEALS MAY ALSO BE HEARD TODAY . 4. THE LD. SR.DR CONSIDERING THE FACT THAT EX-PARTE ORDER HAD BEEN PASSED BY THE ITAT DISMISSING ASSESSEE'S APPEAL IN LIMINE FOR NON-R EPRESENTATION AND CONSIDERING THE ORDER PASSED IN THE QUANTUM PROCEEDINGS AGREED THAT IN THE CIRCUMSTANCES HE WOULD HAVE NO OBJECTION FOR RECALL OF THE ORDER AND INFACT EVEN THE DISPOSAL OF THE PENALTY APPEAL WHEN RECALLED IN T ERMS OF THE PRAYER OF THE ASSESSEE AS ALL FACTS ARE AVAILABLE ON RECORD. 5. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MA TERIAL ON RECORD. IN THE LIGHT OF THE SUBMISSIONS OF THE PARTIES BEFORE THE BENCH AND CONSIDERING THE JUDICIAL PRECEDENT AS AVAILABLE IN CIT VS AN SAL HOUSING CONSTRUCTION LTD. 274 ITR 131 (DEL), I FIND THAT THE PRAY ER OF THE ASSESSEE FOR RECALL OF THE EX-PARTE ORDER DESERVES TO BE ALLOWED. IN THE FACTS OF THE PRESENT CASE, ADMITTEDLY THE ASSESSEES APPEAR TO HAVE REMAINE D COMPLACENT THAT ON THE BASIS OF REASONS CANVASSED ON EARLIER OCCASIONS I.E. IN MAY AND JULY, ADJOURNMENT WOULD YET AGAIN BE GRANTED AND THAT TOO S UO-MOTO WITHOUT ANY APPLICATION IN AUGUST,2017. I FIND THAT THE PRAYER OF THE A SSESSEE IN MAY AND JULY ADMITTEDLY WAS CORRECT AS ULTIMATELY THE CO-ORDINA TE BENCH IN THE HEARING WHICH TOOK PLACE ON 11.04.2018 DID FINALLY PASS AN O RDER ON M.A. 83 & 90/CHD/2018 IN ITA 171 & 172/CHD/2017 PAGE 3 OF 2 09.07.2018 QUASHING THE ASSESSMENT. ACCORDINGLY, THE MIS CELLANEOUS APPLICATIONS FILED IN THE RESPECTIVE APPEALS ARE ALLOWED. 6. IN THE RESULT, BOTH MISCELLANEOUS APPLICATIONS OF THE ASSE SSEES ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 23.01. 2019. SD/- ( !' ) (DIVA SINGH) # / JUDICIAL MEMBER ' ( $( )* +* / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. , / CIT 4. , ( )/ THE CIT(A) 5. *-. / , ' / , 012.3 / DR, ITAT, CHANDIGARH 6 .2 4! / GUARD FILE $( / BY ORDER, 5 / ASSISTANT REGISTRAR