M/s. Savvy Homes Pvt. Ltd., Ghaziabad V. ITO, New Delhi

MA 849/DEL/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3589 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 7 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-07-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2007-2008
• Appeal Filed On: 21-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 271(1)(c); 113

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : ‘G’ NEW DELHI BEFORE SH. DR. B.R.R.KUMAR, ACCOUNTANT MEMBER & SHRI ANUBHAV SHARMA, JUDICIAL MEMBER M.A. No. 848 /Del./2019 (ITA No.-1798/Del./2014), A.Y. 2007-08 M.A. No. 849 /Del./2019 (ITA No.-1799/Del./2014), A.Y. 2007-08 Savvy Homes Pvt. Ltd. C/o. Ashok Raj & Associates 19, Navyug Market, Ghaziabad, Uttar Pradesh TAN / PAN : AANFS1515P vs ITO Ward-7(4) New Delhi Applicant Respondent Assessee by Sh. Akhilesh Kumar, Adv. Revenue by Shri Mrinal Kumar Das. Sr. DR ORDER PER ANUBHAV SHARMA, J.M. The two applications under Rule 24 of I.T.A.T. Rules 1963 have been filed for recalling the ex parte order dated 06.07.2017 in ITA No.-1799/Del./2014, A.Y. 2007-08 by which the appeal of assessee challenging the levy of penalty u/s 271(1)(C) of the Income Tax Act 1961 was dismissed for non-prosecution and exparte order dated 2/6/17 by which the ITA No.-1798/Del./2014, A.Y. 2007-08 challenging the quantum order, was dismissed in limine 2. Heard and perused the record. Date of Hearing 08.07.2022 Date of Pronouncement 12 .07.2022 2 M.A. No. 848, 849/Del/2019 Savvy Homes Pvt. Ltd. 3. On behalf of the assessee it was submitted that on the last date fixed on 29.05.2017 the Authorised Representative had sent his assistant to seek adjournment and the Bench had sought instructions from the AR about the defect in appeal and had pass over the matter for the hearing later on but not conversant with the proceedings, Assistant failed to understand the same and informed the AR that new date will be fixed later on. Accordingly, AR informed the assessee that a fresh notice for hearing will be issued. It was submitted that when the assessee was served demand notice dated 08.04.2019 including the demand arising out of penalty proceedings, the assessee approached the Income Tax Officer and was informed that the appeal before the Tribunal was disposed of. Thereafter the assessee / applicant approached the Registry of ITAT and procured certified copy of orders. It was submitted that on 29.07.2019 when this certified copy was received triggered a limitation and accordingly to present application was filed on 22.11.2019. Ld. Counsel for the assessee relied the affidavits of the Authorized Representative Shri Raj Kumar Aggarwal, CA and the assessee himself who has deposed of these facts. It was submitted that the limitation has to be reckoned from the date of knowledge and for this Ld. counsel for the applicant has also relied following judgment :- “(i) (2003) 6 SCC 186, D. Saibaba V. Bar Council of India & Anr., (ii) (2020) 113 taxmann.com 524 (Jurisdictional Delhi HC) Golden Times Services P. ltd. V. DCIT (iii) (2021) 125 taxmann.com 94 (Jurisdictional Delhi HC), Pacific Projects Ltd. V. Assitant Commissioner of Income Tax (iv) (2008) 301 ITR 434 (SC), 171 Taxman 498, Sree Ayyanar Spinning & Weaving Mills Ltd. V. CIT, (v) (2021) 120 taxmann.com 194, MA No. 69/Mum/2021 (Mumbai ITAT) Techknowledgedgy Interactive Partners Pvt. Ltd. vs. ITO Mumbai.” 3 M.A. No. 848, 849/Del/2019 Savvy Homes Pvt. Ltd. 4. Ld. DR However, submitted that assessee is trying to take benefit of his own wrong as on date of hearing the Authorised Representative did not appear himself and asked person not conversant with the proceedings to represent the assessee. It was submitted that even otherwise the daily orders are updated and assessee must have been aware of the proceedings. 5. Giving thoughtful consideration to the matter on record it can be observed that in this appeal ITA No.-1799/Del./2014, A.Y. 2007-08 by which assessee challenged the levy of penalty u/s 271(1)(C) of the Income Tax Act 1961 on 23/3/2017 the Bench had given adjournment at the written request of the authorized representative of the assessee and the next date fixed was 06.07.2017 and on 06.07.2017, the ex parte order was passed dismissing the appeal for non- prosecution. Thus, as such there was no date of hearing of 29.05.2017 in this ITA No. 1799/Del/2014 arising out of challenge of penalty proceedings. 6. However, the appeal arising out of quantum proceedings ITA No. 1798/Del/2014 on 16.02.2017 hearing was adjourned to 29.05.2017 at the written request of counsel for assessee. However, on 29.05.2017, none had appeared for the assessee and the case was kept for orders which was pronounced on 02.06.2017. The record shows that there is an application dated 29.05.2017 on record by which adjournment was sought and the following order was passed on 2/6/17: “At the time of hearing, an adjournment application was moved by the Ld. AR stating that “case cannot be presented on the said date due to necessary details are to be gathered’. The Ld. Sr. DR inviting attention to the grounds raised, on the other hand, submitted that the appeal of the assessee is not maintainable as in the grounds raised by the assessee it is not the impugned order which is assailed the grievance of the assessee is against the Assessing Officer’s order. The office attendant in support of the application was unable to address the same. The record shows that the appeal has been filed by the assessee on 26.03.2014 and has come up for hearing on various dates and has been adjourned on the written request of the assessee. It was also noticed that adjournment on similar grounds was sought by the ld. AR on 01 st 4 M.A. No. 848, 849/Del/2019 Savvy Homes Pvt. Ltd. December, 2016 which was granted. Thus in order to afford the office attendant time to seek instructions a pass over was given. In the second round, in the absence of any explanation and considering the objection of the Id. Sr. DR, it was deemed appropriate to reject the adjournment application as grant of time, in the peculiar facts and circumstances would be a waste of Government time and machinery. Before parting we deem it appropriate to add that in case the assessee is able to file proper grounds of appeal and explain why the relevant papers have not been made available to its counsel over the years then it may, if so advised pray for a recall of the order and decision on merits.” 7. Now, considering the aforesaid discussion it has apparent that in regard to the Miscellaneous application no. 849/Del/2019 in regard to recalling or order dated 06.07.2017 the facts stated in the application and affidavit of Sh Raj Kumar Aggarwal CA with regard to last date of hearing being 29.05.2017 are factually incorrect. This appeal was listed on 23/3/17 and then on 6/7/17 only. 8. In regard to the Miscellaneous Application no. 848/Del/2019 arising out of order dated 02.06.2017, it was observed that “Before parting we deem it appropriate to add that in case the assessee is able to file proper grounds of appeal and explain why the relevant papers have not been made available to its counsel over the years then it may, if so advised pray for a recall of the order and decision on merits.”. The order dated 02.06.2017 of dismissing appeal in limine can be recalled for decision on merits on satisfaction of aforesaid conditions. 9. The record suggest that revised grounds of appeal in terms of above order has been filed and it is explained that the previous counsel was not conversant with tax practice so there was fault in drafting of appeal. 10. The facts indicate that there was casualness in the approach of the authorized representative in contesting the appeals. There is also factual error in his affidavit. However, assessee cannot be made to suffer for the same. The ends of justice require restoration of both the appeals for hearing on merit. The Miscellaneous applications are allowed and the respective orders dated 2/6/17 and 6/7/17 are 5 M.A. No. 848, 849/Del/2019 Savvy Homes Pvt. Ltd. recalled. The appeals be listed for hearing on 29/8/22 with no separate notices to the parties or their representatives. Order pronounced in open court on this 12 th day of July, 2022. Sd/- Sd/- (Dr. B.R.R.KUMAR) (ANUBHAV SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 12.07.2022 *BINITA, Sr. PS* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT, NEW DELHI