SHYAM KUMAR JAIN, Jaipur V. INCOME TAX OFFICER, WARD-2-5, Jaipur

MA 86/JPR/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2081 (ITAT-JAIPUR)
• Duration Of Justice: 11 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 11-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: BIRDI MAL DASOT
• Keywords: Principle of natural justice

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM M.A. NO. 86/JP/2018 (ARISING OUT OF ITA NO. 1085/JP/2016) FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2010-11 SHRI SHYAM KUMAR JAIN 169/421, HEERA PATH, MANSAROVAR, JAIPUR CUKE VS. INCOME TAX OFFICE WARD-2(4), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AECPJ7090P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI BIRDI MAL DASOT (CA) JKTLO DH VKSJ LS @ REVENUE BY : SMT. NEENA JEPH (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 03/05/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 19/06/2019 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THE PRESENT MISC. APPLICATION HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF CO-ORDINATE BENCH IN ITA NO. 1 085/JP/2016 DATED 15.03.2017. 2. IN ITS APPLICATION, THE ASSESSEE HAS SUBMITTED T HAT THE APPEAL OF THE ASSESSEE WAS DISMISSED BY THE COORDINATE BENCH ON ACCOUNT OF THE SAME BEING DEFECTIVE. IN THIS REGARD, IT WAS SUBMIT TED THAT THE ASSESSEE FILED HIS APPEAL IN FORM NO. 36 ON 09.12.2016. SUBS EQUENTLY, THE NOTICE OF DEFECT WAS RECEIVED BY THE ASSESSEE ON 24.01.201 7 AND THEREAFTER, THE ASSESSEE REMOVED THE DEFECT AND REVISED FORM NO. 36 WAS FILED ON M.A. NO. 86/JP/2018 SHRI SHYAM KUMAR JAIN, JAIPUR VS. ITO, JAI PUR 2 08.02.2017. HOWEVER, WHEN THE MATTER CAME FOR HEARI NG ON 02.03.2017 REVISED FORM NO. 36 WAS NOT CONSIDERED BY THE CO-OR DINATE BENCH AND APPEAL OF THE ASSESSEE WAS DISMISSED AS BEING DEFEC TIVE. IT WAS ACCORDINGLY SUBMITTED THAT THE SAME BEING A MISTAKE APPARENT FROM RECORD, THE ORDER OF THE COORDINATE BENCH MAY BE RE CALLED, APPEAL OF THE ASSESSEE MAY BE ADMITTED AND THE MATTER MAY BE FIXE D FOR HEARING AFRESH ON MERITS. IT WAS FURTHER SUBMITTED THAT THE MATTER WAS FIRST LISTED FOR HEARING ON 2 ND OF MARCH, 2017 AND ON THE VERY FIRST DATE OF HEARI NG, THE APPEAL OF THE ASSESSEE WAS DISMISSED FOR NON-PR OSECUTION. IT WAS ACCORDINGLY SUBMITTED THAT KEEPING IN VIEW, THE PRI NCIPLE OF NATURAL JUSTICE, THE ASSESSEE MAY BE ALLOWED TO BE HEARD ON MERIT. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE DIDNT RECEIVE THE ORDE R SO PASSED BY THE CO- ORDINATE BENCH AND SUBSEQUENTLY, THE ASSESSEE ENQUI RED ABOUT THE STATUS OF HIS PENDING APPEAL AND HE CAME TO KNOW THAT THE APPEAL HAS ALREADY BEEN DISMISSED ON 15.03.2017. IT WAS FURTHER SUBMIT TED THAT APPELLANT FILED AN APPLICATION SEEKING COPY OF THE ORDER ON 2 9.05.2018 AND ON RECEIPT, THEREOF, THE ASSESSEE HAS FILED THE PRESEN T MISC. APPLICATION ON 11.07.2018. IN THIS REGARD, AN AFFIDAVIT HAS ALSO B EEN FILED CONFIRMING THE CONTENTS OF THE APPLICATION. 3. HEARD BOTH THE PARTIES. IT IS NOTED THAT THE AP PEAL OF THE ASSESSEE WAS DISMISSED ON THE VERY FIRST DATE OF HEARING FOR THE REASON THAT THE APPELLANT HAS NOT COMPLIED WITH DEFECTIVE NOTICE SO ISSUED BY THE REGISTRY ON 09.12.2016. HOWEVER, ON PERUSAL, IT IS NOTED THA T THE ASSESSEE HAS RECTIFIED THE DEFECT AND THE REVISED FORM NO. 36 WA S FILED ON 8.02.2017 WELL BEFORE THE SCHEDULED DATE OF HEARING FIXED ON 02.03.2017. APPARENTLY, THE REVISED FORM 36 AND THE FACT THAT T HE ASSESSEE HAS REMOVED THE DEFECT HAS SKIPPED THE ATTENTION OF THE COORDINATE BENCH M.A. NO. 86/JP/2018 SHRI SHYAM KUMAR JAIN, JAIPUR VS. ITO, JAI PUR 3 AND THE APPEAL WAS DECIDED EX-PARTE FOR WANT OF REM OVAL OF DEFECT ON THE FIRST DATE OF HEARING. GIVEN THE FACT THAT THE ASS ESSEE HAS ALREADY REMOVED THE DEFECT IN ITS APPEAL AND THE MATTER HAS NOT BEEN DECIDED ON MERITS, WE ARE RECALLING THE ORDER PASSED BY THE CO -ORDINATE BENCH AND DIRECT THE REGISTRY TO LIST THE MATTER FOR HEARING AND ADJUDICATION IN DUE COURSE. IN THE RESULT, MISC. APPLICATION SO FILED BY THE AS SESSEE IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON 19/06/2019. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 19/06/2019 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI SHYAM KUMAR JAIN, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-2(4), JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {M.A NO. 86/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR