Sanjeev Batish, Panchkula V. DCIT, Circle, Panchkula

MA 85/CHANDI/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 2318 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 2 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 27-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK KHANNA CIT
• Keywords: Revision of order; Opportunity of being heard; Set aside
• Section: 274; 80IC; 254(2); 80IC

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH B CHANDIGARH !, ' # $ , $ % & ' ( ) , *+ # BEFORE: SMT. DIVA SINGH, JM & SMT.ANNAPURNA GUPTA, AM M.A. 85/CHD/2019 IN ./ ITA NO. 723/CHD/2018 / ASSESSMENT YEAR : 2012-13 SHRI SANJEEV BATISH, PROP. JAYANTI CONSTRUCTION CHEMICALS HOUSE NO. 131, SECTOR-8, PANCHKULA. VS THE DCIT, CIRCLE, PANCHKULA. ./ PAN NO: AEUPB4488D / APPELLANT / RESPONDENT ! ' / ASSESSEE BY : SHRI ROHIT GOYAL, CA # ! ' / REVENUE BY : SHRI ASHOK KHANNA, ADDL. CIT $ % ! &/ DATE OF HEARING : 24.06.2021 '()* ! &/ D ATE OF PRONOUNCEMENT : 25 .06.2021 HEARING CONDUCTED VIA WEBEX *,/ ORDER PER DIVA SINGH BY WAY OF THE PRESENT MISCELLANEOUS APPLICATION FILED U/S 254(2) OF THE INCOME TAX ACT, THE ASSESSEE PRAY S FOR RECALL OF THE EX-PARTE ORDER DATED 04.10.2018 IN ITA 723/C HD/2018. 2. THE LD. AR RELYING ON THE MISCELLANEOUS APPLICAT ION FILED PRAYED FOR A RECALL OF THE EX-PARTE ORDER. HIS ATT ENTION WAS INVITED TO THE FACTS SET OUT IN PARA 1 & 2 OF THE M .A. WHICH APPEAR TO BE ADDRESSING SOME DELAY AND SINCE, THERE IS NO DELAY POINTED OUT BY THE REGISTRY IN THE MISCELLANE OUS APPLICATION FILED THE FACTS REFERRED TO IN THE SAID PARAS WERE QUESTIONED. THE LD. AR AGREED THAT FOR THE PURPOSE S OF THE MA 85 /CHD/2019 IN ITA 723/CHD/2018 A.Y. 2012-13 PAGE 2 OF 6 PRESENT M.A., THESE FACTS ARE NOT RELEVANT. IT WAS SUBMITTED BY HIM THAT THE APPEAL OF THE ASSESSEE HAD BEEN DISMIS SED BY THE ITAT BY AN EX-PARTE ORDER TAKING NOTE OF THE FACT T HAT THERE WAS A DELAY IN THE FILING OF THE APPEAL AND HENCE T HE ASSESSEE IN THE M.A. HAD SOUGHT TO EXPLAIN THIS DELAY STATIN G THAT HE HAD ENTRUSTED HIS EMPLOYEE MR. GAJENDRA ARYA TO FOL LOW THROUGH WITH THE RELEVANT PAPER WORK AND MR. GAJEND RA ARYAS AFFIDAVIT HAS BEEN FILED EXPLAINING THE MISTAKE IN THE DELAYED FILING OF THE APPEAL. WE FIND THAT IN THE EX-PARTE IMPUGNED ORDER, THESE FACTS HAVE BEEN NOTICED IN PARAS 2 & 3 AND FOR WANT OF PROPER EXPLANATION, THE APPEAL OF THE ASSES SEE WAS DISMISSED BY THE SAID EX-PARTE ORDER. IT IS SEEN T HAT EVEN OTHERWISE THE DEDUCTION CLAIMED U/S 80IC AS PER THE THEN SETTLED LEGAL POSITION SET OUT BY THE APEX COURT IN THE CASE OF CIT VS CLASSIC BINDING INDUSTRIES (2018) 96 TAXMANN .COM 405 (S.C) THE APPEAL OF THE ASSESSEE ON MERITS WAS ALSO TO BE DISMISSED. HOWEVER, REVERTING BACK TO THE ISSUES F OR DETERMINING THE PRESENT PROCEEDINGS, IT WAS MADE CL EAR THAT THE SUBMISSIONS MADE IN PARAS 1, 2, 4 & 5 OF THE PR ESENT MISCELLANEOUS APPLICATION REFERRING TO THESE FACTS ARE NOT RELEVANT FOR THE PURPOSES OF DECIDING THE PRAYER SE T OUT IN PARA 6 OF THE APPLICATION. MA 85 /CHD/2019 IN ITA 723/CHD/2018 A.Y. 2012-13 PAGE 3 OF 6 3. THE LD. AR AGREED THAT FOR THE PURPOSES OF THE P RESENT M.A. RELEVANTY FACTS ARE ADDRESSED IN PARA 3 HE DRE W SPECIFIC ATTENTION TO THE SAID PARA. IT WAS SUBMITTED THAT THE CONTENTS OF PARA 3 OF THE MISCELLANEOUS APPLICATION ARE SUPP ORTED BY AN AFFIDAVIT OF THE ASSESSEE AND ALSO THE COUNSEL HIMS ELF. RELYING ON THESE, IT WAS SUBMITTED THAT FOR REASONS BEYOND THE CONTROL OF THE ASSESSEE, THE ASSESSEE REMAINED UNREPRESENTE D BEFORE THE ITAT ON THE DATE OF HEARING. REFERRING TO THE AFFIDAVIT FILED BY HIMSELF, AS THE COUNSEL, HE STATED THAT ON ACCOU NT OF SOME PROBLEMS WITH HIS CAR, HE COULD NOT BE PRESENT BEF ORE THE ITAT ON THE ASSIGNED DATE. REFERRING TO THE RECORD, IT WAS SUBMITTED THAT AN ADJOURNMENT HAD BEEN MOVED BY THE ASSESSEE ON THE GROUNDS THAT THE COUNSEL WAS TRAVELLING OUT OF STAT ION. ONE DAYS TIME WAS GRANTED. ON THE SAID DATE, ON ACCOU NT OF SOME PROBLEMS WITH THE CAR, HE AS A COUNSEL COULD NOT BE PRESENT AND THIS FACT, IT WAS SUBMITTED, HAS BEEN SUPPORTED BY HIM ON AN AFFIDAVIT. ACCORDINGLY, IT WAS HIS LIMITED PRAY ER THAT THE EX-PARTE IMPUGNED ORDER MAY BE RECALLED SO AS TO GI VE THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. 4. THE LD. SR.DR MR. ASHOK KHANNA ON CONSIDERING TH E RECORD HAD NO OBJECTION TO THE RECALL OF THE EX-PAR TE ORDER. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS SEEN THAT FOR RECALL OF THE MA 85 /CHD/2019 IN ITA 723/CHD/2018 A.Y. 2012-13 PAGE 4 OF 6 IMPUGNED EX-PARTE ORDER, THE ASSESSEE HAS PLEADED T HE FOLLOWING FACTS IN ITS MISCELLANEOUS APPLICATION IN PARA 3 : 3. FURTHER, KIND ATTENTION OF THE BENCH IS ALSO IN VITED TO THE FACT THAT I HAD BEEN REPRESENTED BY MY COUNSEL CA ROHIT GOEL AND ON THE EARLIER DATE OF HEARING ON 04.09.2018, HE HAD REQUESTED ADJOURNMENT OF THE CAS E AFTER 30-09-2018 AS HE HAD BEEN TRAVELLING TO GURGAON ON SOME EMERGENT MATTERS . HOWEVER, THE HON'BLE BENCH HAD ADJOURNED THE CASE TO THE VERY NEXT DAY, 05.09. 2018 WHICH COULD NOT BE COMMUNICATED TO HIM AS HE ONLY REACHED BACK FROM GU RGAON IN THE EARLY HOURS OF THE I MORNING OF 05.09.2018. AS A RESULT OF THE SAME, HE COULD NOT BE PRESENT BEFORE THE HON'BLE BENCH HON'BLE BENCH ON THE DATE OF HEARING. AN AFFIDAVIT FROM CA ROHIT GOEL HAD ALSO BEING FILED WITH EARLIER APP LICATION U/S 254(2). 5.1 IN TERMS OF THE FACTS SET OUT IN PARA 3 THE PRA YER IS AS UNDER : 6. THEREFORE, IN LIGHT OF THE ABOVE FACTS, IT IS S UBMITTED THAT IF THE ORDER DATED 04.10.2018 IS NOT RECALLED THE RESPONDENT APPLICANT WILL BE SUFFERING SERIOUS FINANCIAL LOSS AND IN THE INTEREST OF LAW, EQUITY, CONSISTENCY AND JUSTICE THE HON'BLE BENCH IS REQUESTED TO SET ASIDE THE IMPUGNED ORDER, CONDONE THE DELAY IN FILING OF APPEAL AND PROVIDE AN EFFECTIVE OPPORTUNITY TO THE APPLICANT TO DEFEND HIS CASE ON MERITS AS NO ONE CAN BE CONDEMNED UNHEARD. 5.2 IT IS SEEN THAT ON RECORD THERE IS AN AFFIDAVIT DATED 09.05.2018 OF MR. GAJENDRA ARYA NOTARIZED ON 11.05. 2018 REFERRING TO MISTAKE IN FILING THE APPEAL LATE. TH E SAID AFFIDAVIT IS NOT IN ACCORDANCE WITH LAW AND NOT EVE N RELEVANT FOR THE PRESENT PROCEEDINGS. IT IS FURTHER SEEN TH AT THE AFFIDAVIT OF THE ASSESSEE AGAIN IS ALSO NOT RELEVAN T FOR DETERMINING THE PRESENT ISSUES AS IT ONLY SEEKS TO ADDRESS THE DELAY IN THE FILING OF THE APPEAL. THE SAID ISSUE MAY COME INTO PLAY ONLY AFTER THE PRESENT MISCELLANEOUS APPLICATI ON IS DECIDED. FOR THE PURPOSES OF THE PRESENT APPLICATI ON, PARA 3 OF THE MISCELLANEOUS APPLICATION IS FOUND SUPPORTED BY THE MA 85 /CHD/2019 IN ITA 723/CHD/2018 A.Y. 2012-13 PAGE 5 OF 6 AFFIDAVIT OF THE COUNSEL MR. ROHIT GOYAL HIMSELF. THE RELEVANT FACTS ARE SET OUT IN PARAS 2, 3 AND 4 OF THE SAME. FOR READY REFERENCE, THESE ARE REPRODUCED HEREUNDER : AFFIDAVIT I, CA ROHIT GOEL SON OF SHIV KUMAR GOEL; 179 BANK R OAD; AMBALA CANTT DO HEREBY SOLEMNLY AFFIRM AND DECLARE AS UNDER : 1. THAT I WAS APPOINTED AS COUNSEL TO REPRESENT SANJEE V BATISH PROP JAYANTI CONSTRUCTION CHEMICAL BEFORE THE HON'BLE ITAT CHAND IGARH 'SMC' BENCH IN RELATION TO THE ITA NO. 723/ CHD/ 2018 FOR AY 20 12-13. 2. THAT THE SAID CASE WAS FIXED FOR HEARING FOR FIRST TIME BEFORE THE HON'BLE BENCH ON 04.09.2018 ON WHICH DATE, I HAD SUBMITTED A REQUEST FOR ADJOURNMENT TO ANY DATE AFTER 30-09-2018 AS I HAD B EEN TRAVELLING TO PRINCIPAL CIT CENTRAL GURGAON IN SOME EMERGENT MATT ERS U/S 263. 3. HOWEVER, THE BENCH ADJOURNED THE CASE TO THE VERY N EXT DAY I.E 05.09.2018 WHICH COULD NOT BE COMMUNICATED TO ME AS I ONLY RET URNED FROM GURGAON IN THE EARLY MORNING OF 05.09.2018 AS MY CAR HAD ME T AN ACCIDENT ON MY WAY BACK . 4. THOUGH, I APPEARED IN CHANDIGARH ITAT A BENCH ON 05.09.2018, SINCE I HAD NO KNOWLEDGE OF THE MATTER FIXED BEFORE THE BEN CH AS SUCH I DID NOT ATTEND THE PROCEEDING BEFORE SMC BENCH. SD/- DEPONENT 6. CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES AS SET OUT IN APPLICATION SUPPORTED BY THE AFFIDAVIT OF TH E COUNSEL HIMSELF, WE FIND THAT FOR REASONS BEYOND THE CONTRO L OF THE ASSESSEE, THE COUNSEL COULD NOT PUT IN AN APPEARANC E BEFORE THE ITAT. ACCORDINGLY, IN THE PECULIAR FACTS EXERC ISING THE POWERS AS VESTED IN US BY PROVISO TO RULE 24 OF THE ITAT RULES 1963 RELYING UPON DECISION OF THE HON'BLE DELHI HIGH CO URT IN THE CASE OF CIT VS ANSAL HOUSING CONSTRUCTION LTD. 274 ITR 131 MA 85 /CHD/2019 IN ITA 723/CHD/2018 A.Y. 2012-13 PAGE 6 OF 6 (DEL) , THE EX-PARTE ORDER DATED 04.10.2018 IS RECALLED. THE APPEAL IS DIRECTED TO BE FIXED FOR HEARING ON 18.08 .2021 WHEREIN THE ASSESSEE SHALL FIRST ADDRESS THE DELAY IN FILING OF THE APPEAL BEFORE THE ITAT BEFORE PROCEEDING TO ADD RESS THE ISSUES ON MERITS IN CASE THE DELAY IS CONDONED. ISS UANCE OF NOTICE FOR THE SPECIFIC DATE IS DISPENSED WITH IN V IEW OF THE FACT THAT THE DATE WAS ANNOUNCED IN THE VIRTUAL COU RT VIA WEBEX IN THE PRESENCE OF THE PARTIES AT THE TIME OF HEARING ITSELF. SAID ORDER WAS PRONOUNCED AT THE TIME OF HE ARING ITSELF. 7. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEES IS ALLOWED. ORDER PRONOUNCED ON 25 TH JUNE, 2021. SD/- SD/- ( % & ' ( ) ) ( ! ) (ANNAPURNA GUPTA) (DIVA SINGH) *+ #/ ACCOUNTANT MEMBER ' #/ JUDICIAL MEMBER + (, ! -. /. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT -3. $ 0 / CIT $ 0 ()/ THE CIT(A) 4. .34 5, & 5. 5, 7894:/ DR, ITAT, CHANDIGARH 6. 49 ;%/ GUARD FILE (, $ / BY ORDER, < #/ ASSISTANT REGISTRAR