The Ayali Kalan Co-op Agriculture Multi purpose Society Limited, Ludhiana V. Income Tax Officer W III (3), Ludhiana

MA 89/CHANDI/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7277 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 5 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 07-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDER KANTA SR DR

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCH SMC CHANDIGARH !', # BEFORE: SMT. DIVA SINGH, JM M.A. NO. 89/CHD/2018 IN ITA NO. 880/CHD/2016 ASSESSMENT YEAR : 2010-11 THE AYALI KALAN CO-OP AGRICULTURE MULTI-PURPOSE SOCIETY LTD., VPO- AYALI KALAN, DISTT. LUDHIANA. VS THE ITO, WARD 3(3), LUDHIANA. PAN NO: AAAAT3941Q APPELLANT RESPONDENT !' ASSESSEE BY : SHRI PARVEEN JINDAL, CA #!' REVENUE BY : SMT. CHANDERKANTA, SR.DR $ %! & DATE OF HEARING : 19.07.2019 '()*! & D ATE OF PRONOUNCEMENT : 26.07.2019 $%/ ORDER BY THE PRESENT APPLICATION FILED U/S 254(2) OF THE INCOME TAX ACT,1961 THE ASSESSEE PRAYS FOR A RECALL OF THE EX-PARTE ORDER DATED 25.10.2017 WHEREIN THE ASSESSEE'S APPEA L WAS DISMISSED IN-LIMINE FOR NON REPRESENTATION. 2. THE LD. AR INVITING ATTENTION TO THE MODIFIED MI SCELLANEOUS APPLICATION DATED 12.07.2019 FILED IN THE REGISTRY ON 18.07.2019 BEARING SR. NO. 1399 STATES THAT ON THE SPECIFIC DATE I.E. 02.08.2017 THE COUNSEL WAS OUT OF STATION ON A CCOUNT OF A BOARDS MEETING WHICH WAS FIXED AT A VERY SHORT NOT ICE. RELYING UPON THE AFFIDAVIT FILED ON BEHALF OF THE ASSESSEE AFFIRMING THESE M.A. 89/CHD/2018 IN ITA 880/CHD/2016 A.Y. 2010-11 PAGE 2 OF 5 FACTS, A PRAYER FOR RECALL OF THE ORDER WAS MADE. FOR READY REFERENCE, RELEVANT EXTRACT FROM THE MISCELLANEOUS APPLICATION IS REPRODUCED HEREUNDER : XI) 02/08/2017: COUNSEL SOUGHT ADJOURNMENT AS BEING CEN TRAL STATUTORY AUDITORS OF UCO BANK, COUNSEL WAS REQUIRED TO ATTEND BOARD MEET ING FIXED FOR 02/08/2017 AT KOLKATA FOR REVIEW OF QUARTERLY RESULTS OF THE BANK . THE BOARD MEETING WAS FIXED AT VERY SHORT NOTICE . THE LETTER FOR ADJOURNMENT WAS SENT BY HAND THROU GH AN EMPLOYEE OF THE COUNSEL BUT THE SAME WAS REJECTED BY THIS HON'BLE B ENCH. IN ORDER TO SUBSTANTIATE THAT CA. MANISH K. GUPTA WAS AT KOLKATA ON 02/08/2017, W E ENCLOSE HEREWITH THE FOLLOWING DOCUMENTS AS ANNEXURE -1 : 1) PHOTOCOPY OF THE AFFIDAVIT OF THE ASSESSEE AS SUBMI TTED WITH THE MA IS AGAIN ENCLOSED. (PG. NO. 1) 2) COPY OF BALANCE SHEET OF UCO BANK SIGNED BY CA. MAN ISH K. GUPTA AT KOLKATA. ( THE COPY OF THE BALANCE SHEET WAS ALSO EARLIER SUBM ITTED ALONG WITH MA FOR RESTORATION OF THE APPEAL) (PG. NO. 2-6) 3) COPY OF THE BILL DATED 03/08/2017 OF THE HOTEL TAJ, KOLKATA BOOKED BY UCO BANK WHERE THE NAME OF THE COUNSEL NAMELY MANISH GUPTA A PPEAR IN THE COLUMN OF 'GUEST NAME' SHOWING THAT HE ARRIVED IN THE HOTEL ON 30/07 /2018 AND DEPARTED ON 03/08/2017. (WAS ALSO EARLIER SUBMITTED VIDE OUR SUBMISSION DATED 30/04/201 9 SUBMITTED ON 20/05/2019) (PG. NO. 7-8) 4) COPY OF AIR-TICKET IN THE NAME OF MANISH GUPTA SHOWING DEPARTURE ON 03/08/2017 FROM KOLKATA TO DELHI, (WAS ALSO EARLIER SUBMITTED VIDE OUR SUBMISSION DATED 30/04/2019 SUBMITTED ON 20/05/2019) (PG. NO. 9) 5) COPY OF BOARDING PASS IN THE NAME OF MANISH GU PTA FOR DEPARTURE FROM KOLKATA ON 03/08/2017 THROUGH FLIGHT NO. UK720. (WAS ALSO EARL IER SUBMITTED VIDE OUR SUBMISSION DATED 30/04/2019 SUBMITTED ON 20/05/2019) (PG. NO. 10). 3. THE LD. SR.DR ON CONSIDERING THE MATERIAL AVAILA BLE ON RECORD SUBMITTED THAT SHE HAS NO OBJECTION TO THE R ECALL OF THE ORDER AND A DECISION ON THE APPEAL OF THE ASSESSEE ON MERITS AFTER HEARING THE PARTIES. 4. I HAVE HEARD THE SUBMISSIONS AND PERUSED THE MAT ERIAL ON RECORD. IT IS SEEN THAT THE APPEAL OF THE ASSESSEE WAS DISMISSED ON THE GROUNDS OF NON-REPRESENTATION REJECTING THE APPLICATION M.A. 89/CHD/2018 IN ITA 880/CHD/2016 A.Y. 2010-11 PAGE 3 OF 5 MOVED ON THE STATED DATE I.E. 02.08.2017 IN VIEW OF THE FOLLOWING FACTS : 2. THE RECORD SHOWS THAT THE ADJOURNMENT WAS SOUGH T ON 03.10.2016, 26.10.2016, 07.11.2016, 19.12.2016, 30.01.2017, 14. 02.2017, 31.05.2017 AND 06.07.2017. IN THE CIRCUMSTANCES GRANT OF ANY MORE TIME TO THE ASSESSEE, IT APPEARS, WOULD BE A WASTE OF GOVERNMENT TIME AND MACHINERY. 4.1 WE FIND THAT EACH OF THE ABOVE MENTIONED DATES IN THE IMPUGNED ORDER HAVE BEEN ADDRESSED IN THE ORDER IN THE MISCELLANEOUS APPLICATION FILED IN PARAS 1 TO 10. T HE POSITION OF FACTS HAS BEEN CORRECTLY NOTED BY THE ASSESSEE ON E ACH OF THE DATES EXCEPT FOR THE POSITION ON 14.02.2017. THE F OLLOWING NARRATION GIVEN BY THE ASSESSEE IN THE APPLICATION FILED IS BORNE OUT TO BE INCORRECT ON FACTS: 14/02/2017: THE COUNSEL NAMELY SH. MANISH GUPTA WAS PRESENT TO ATTEND THE HEARING. HOWEVER, DUE TO THE BUSY SCHEDULE OF THE BENCH, IT WAS INFORMED THAT THE ASSESSEE'S APPEAL WILL NOT BE TAKEN UP AND THE HEARING WAS ADJ OURNED TO 16/03/2017. IN THIS CONNECTION, IT MAY BE NOTED THAT THE ASSESSEE HAD N OT SOUGHT ANY ADJOURNMENT FOR THE HEARING FIXED FOR 14/02/2017, AS STATED IN THE ORDE R DATED 25/10/2017 FOR DISMISSING THE APPEAL . (EMPHASIS SUPPLIED) 4.2 THE POSITION AS AVAILABLE ON RECORD WAS CROSS-C HECKED FROM THE ORDERSHEET WHEREIN IT IS SPECIFICALLY RECORDED THAT THE APPEAL HAS BEEN ADJOURNED ON THE REQUEST OF THE ASS ESSEE. FOR READY REFERENCE, RELEVANT NOTING FROM THE ORDER-SHE ET IS EXTRACTED HEREUNDER : M.A. 89/CHD/2018 IN ITA 880/CHD/2016 A.Y. 2010-11 PAGE 4 OF 5 (EXTRACT OF ORDER SHEET ENTRY DATED 14.02.2017) 4.3 ACCORDINGLY, I FIND THAT TO THE EXTENT OF THE A BOVE NARRATION, THE APPLICATION ON RECORD IS FOUND TO BE INCORRECT AND NOT SUPPORTED FROM THE RECORD. TAKING NOTE OF THE FACT THAT AS FAR AS THE PRESENT PRAYER IN THE PRESENT FACTS I S CONCERNED, NOTHING MUCH TURNS ON THE SAME EXCEPT FOR ADDING A WORD OF CAUTION THAT THE ASSESSEE AND THE COUNSEL SHOULD TA KE DUE CARE AND DILIGENCE IN THE FILING OF APPLICATION ETC. TH E ISSUE ACCORDINGLY IS CLOSED. REVERTING TO THE ISSUE AT HA ND, CONSIDERING THE ARGUMENTS ADVANCED AND THE SUPPORTI NG EVIDENCES WHICH HAVE NOT BEEN DISPUTED BY THE REVEN UE ADDRESSING THE LACK OF REPRESENTATION ON THE SPECIF IC DATE I.E. 02.08.2017, I AM OF THE VIEW THAT IT WOULD BE IN TH E FITNESS OF THINGS TO RECALL THE EX-PARTE ORDER DATED 25.10.201 7 AS THE ASSESSEE HAS OFFERED A VALID EXPLANATION FOR NON RE PRESENTATION WITH SUPPORTING DOCUMENTS. ACCORDINGLY, EXERCISING THE POWERS AS VESTED IN ME BY PROVISO TO RULE 24 OF THE ITAT R ULES 1963, THE ORDER IS RECALLED. SUPPORT IS DRAWN FROM THE D ECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS ANSA L HOUSING CONSTRUCTION LTD. 274 ITR 131 (DEL). M.A. 89/CHD/2018 IN ITA 880/CHD/2016 A.Y. 2010-11 PAGE 5 OF 5 4.4 ACCORDINGLY, ON ACCOUNT OF THE DETAILED REASONS SET OUT HEREINABOVE ON THE FACTS AVAILABLE ON RECORD CONSID ERING THE RELEVANT PROVISIONS AND THE POSITION OF LAW APPLICA BLE THEREON, THE REGISTRY IS DIRECTED TO FIX THE APPEAL FOR HEA RING ON 02.08.2019 FOR WHICH DATE NO NOTICE OF HEARING S HALL BE ISSUED TO THE PARTIES AS THE DATE WAS ANNOUNCED ON THE DATE OF HEARING ITSELF IN THE PRESENCE OF THE PARTIES. 5. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH JULY,2019. SD/- ( !' ) (DIVA SINGH) # / JUDICIAL MEMBER ' ( (+! ,-.- COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT - 2. THE RESPONDENT - 3. $ / CIT 4. $ / 01 THE CIT(A) 5. -2 45&456789 DR, ITAT, CHANDIGARH 6. 8:% GUARD FILE (+ $ BY ORDER, ; # ASSISTANT REGISTRAR