Achyutha Electricals and Industries Private Limited., Hyderabad V. DCIT, Circle-1(1)., Hyderabad

MA 9/Hyd/2023

AI Insights

Achyutha Electricals and Industries Pvt Ltd filed two Miscellaneous Applications seeking to recall ex-parte orders dismissing their appeals for the assessment years 2009-10 and 2011-12. The applications were based on the claim that the assessee did not receive proper notice of the hearing due to a change in address post-pandemic and non-communication from their previous counsel. The Department of Revenue opposed the applications, citing the assessee's continuous non-cooperation and previous withdrawal of power of attorney. The Tribunal dismissed the applications, citing the assessee's non-cooperative behavior and reliance on procedural compliance for notice delivery.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 129930 (ITAT-HYDERABAD)
• Duration Of Justice: 7 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-09-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB-A
• Next Hearing Date: 07-09-2023
• Assessment Year: 2011-2012
• Appeal Filed On: 29-01-2023
• Other Referred Cases: Pr. CIT vs. NRI Iron & Steel (P) Ltd
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 148; 143(3)

Judgement Text

MA Nos 8 and 9 of 2023 Achyutha Electricals and Industries Pvt Ltd Page 1 of 9 आयकर अपीलȣय अͬधकरण, हैदराबाद पीठ IN THE INCOME TAX APPELLATE TRIBUNAL Hyderabad ‘A ‘ Bench, Hyderabad Before Shri R.K. Panda, Vice-President AND Shri Laliet Kumar, Judicial Member M.A. Nos. 8 & 9/Hyd/2023 (Arising out of ITA Nos.1189 & 1190/Hyd/2017) Assessment Year: 2009-10 & 2011-12 Achyutha Electricals and Industries (P) Ltd, Hyderabad PAN:AACCA9417C Vs. Dy. C. I. T. Circle 1(1) Hyderabad (Appellant) (Respondent) Assessee by : Shri Pawan Kumar Chakrapani Revenue by: Shri Shakeer Ahmed, DR Date of hearing: 08/09/2023 Date of pronouncement: 14/09/2023 ORDER Per R.K. Panda, Vice-President The assessee through these Miscellaneous Applications has requested the Tribuanal to recall the ex-parte order passed by it due to non-appearance of the assessee. Since the facts in both the M.As are identical, therefore, these M.As were heard together and are being disposed of by this common order. M.A. No.8/Hyd/2023 (A.Y 2009-10) (Arising out of Ita No.1189/Hyd/2017) 2. The learned Counsel for the assessee referring to the contents of the M.A filed by the assessee drew the attention of the Bench to the same which reads as under: MA Nos 8 and 9 of 2023 Achyutha Electricals and Industries Pvt Ltd Page 2 of 9 1. The Petitioner/Appellant begs to submit the following petition under Rule 24 of the Income Tax (Appellate Tribunal) Rules, 1963, for kind consideration and gracious favourable order of the Hon'ble Bench as under: 2. Being aggrieved by the order of assessment passed by the learned Income Tax Officer, Circle 1(1) Hyderabad, u/s 143(3) of the Act, for the A.Y 2009-10, dated 3.12.2016. The learned Income Tax Officer Circle 1(1) issued notice u/s 148 of the Act and passed the order u/s 143(3) r.w.s. 147 of the Act dated 31.03.2015. The Petitioner/Appellant had instituted an appeal before the learned CIT (A) Hyderabad/ 3. The learned CIT (A) Hyderabad heard the matter and disposed off by dismissing the appeal filed by the Petitioner/Appellant vide his order dated 27.03.2017 in Ita No.0177/CIT(A)-1/Hyd-2015-16/2016-17. 4. Being aggrieved by the order passed by the learned CIT (A) Hyderabad, the Petitioner/Appellant instituted an appeal before the Hon'ble Income Tax Appellate Tribunal, Hyderabad ‘A’ Bench, Hyderabad, in Appeal No.ITA No.1189/Hyd/2017. 5. It is humbly submitted that, the company has closed its operations post pandemic, the notice communicating the hearing date fixed by this Honorable Tribunal might have been issued on the old address as mentioned in form no. 36, which was not in existence post pandemic. The counsel who had been given the brief also has not informed about the date of hearing in the case. The notice of hearing fixed was not served on the Appellant, nor any communication about the date of hearing was put to the notice of the Appellant. 6. It is submitted that the Appellant had approached the present counsel along with the files of the appeal preferred by the Appellant, and requested to cheque the status of the case. On enquiry by the present Counsel, it was notices that the Honorable Tribunal has passed an ex-party order dismissing the appeal preferred by the Appellant vide order in ITA No. 1189/Hyd/2017, dated 15/07/2022. It is only after the downloading of the order of the Honorable Tribunal from the portal, the Appellant was aware that the appeal preferred by the Appellant was dismissed by an ex- party order. 7. Due to this fact the Appellant could not represent the case which was posted for hearing. The non-appearance before this Honorable Bench on the allotted date of hearing (i.e.) on 11/07/2022 was not intentional and it was beyond the control of the Petitioner / Appellant and it humbly prayed that no adverse inference be drawn by this Honorable Bench. 8. Wherefore, it is humbly prayed that, this Honorable Bench may kindly recall the order passed ex-parte dated 15/07/2022 dismissing the appeal filed by the Petitioner l Appellant and adjudicate the case after giving the opportunity to the Appellant, for the advancement of substantial cause of justice. In the event if this miscellaneous application is not allowed, the Petitioner/Appellant would be put to great hardship and irreparable injury MA Nos 8 and 9 of 2023 Achyutha Electricals and Industries Pvt Ltd Page 3 of 9 and on the other hand no hardship or injury would be caused to the Respondent if this miscellaneous application is recalled. 9. Wherefore, the Petitioner/Appellant humbly pray before this Hon'ble Bench consider the appeal preferred by the Petitioner/Appellant as admissible and hear the Petitioner/Appellant on merits of the matter for the advancement of substantial cause of justice. 10. It is again humbly prayed before this Hon'ble Bench to kindly recall the order passed ex-parte, dated 15.07.2022 dismissing the appeal preferred by the Petitioner/Appellant in the interest of justice and equity”. 3. He submitted that the contents of the M.A are self- explanatory and therefore, the Tribunal should recall the order and decide the issue after giving an opportunity of being heard to the assessee. 4. The learned DR, on the other hand, strongly objected to the M.A filed by the assessee. Referring to the order of the Tribunal, the learned DR drew the attention of the bench to the same and submitted that due to continuous non-appearance of the assessee before the Tribunal, the Tribunal had to take the extreme step. He submitted that the AR of the assessee vide letter dated 7.3.2022 had withdrawn the power of attorney due to non- cooperation of the assessee by giving the requisite details. The learned DR drew the attention of the Bench to the withdrawal application filed by the previous Advocate of the assessee which reads as under: MA Nos 8 and 9 of 2023 Achyutha Electricals and Industries Pvt Ltd Page 4 of 9 MA Nos 8 and 9 of 2023 Achyutha Electricals and Industries Pvt Ltd Page 5 of 9 5. Referring to the decision of the Hon'ble Supreme Court in the case of Pr. CIT vs. NRI Iron & Steel (P) Ltd reported in (2019) 418 ITR 449, he drew the attention of the Bench to the same and submitted the Hon'ble Supreme Court in the said decision has dismissed the application filed for recall of the decision of the Hon'ble Supreme Court holding that where the assessee was duly served with the Court notice of SLP through its A.R and was also provided sufficient opportunity to appear before the Court, however, when none appeared on behalf of the assessee and the judgment was passed ex-parte, application filed by the assessee for recall of the judgment was to be dismissed. He accordingly submitted that the M.A filed by the assessee being devoid of any merit has to be dismissed. 6. We have heard the rival arguments made by both the sides and perused the record. A perusal of the order sheet entries shows that the case was fixed for hearing on 5.12.2017 for the first time and at the request of the learned Counsel for the assessee was getting adjourned from time to time. When the case was last fixed for hearing on 7.3.2022, due to non-appearance of anyone, the case was adjourned to 10.03.2022. Again, when none appeared on 10.03.2022, the case was adjourned to 11.07.2022 by issue of fresh notice through RPAD. In the meantime, the earlier AR of the assessee vide letter dated 7.3.2022 had withdrawn his power of attorney for which on 10.03.2022 the notice was issued through RPAD fixing the date of hearing to 11.7.2022. Even though the letter was sent through RPAD, there was non-compliance from the assessee for which the Tribunal has to pass the order on the basis of material available on record and after hearing the learned DR and the order was pronounced on 15.07.2022. MA Nos 8 and 9 of 2023 Achyutha Electricals and Industries Pvt Ltd Page 6 of 9 7. A perusal of the record shows that after dismissal of the appeal on 15.7.2022, the order of the Tribunal which was sent to the assessee through RPAD was returned unserved by the Postal Department with the remark “Addressee refused”. 8. Further, even after the dismissal of the appeal on 15.07.2022, the assessee had filed the present M.A on 30.01.2023 and the notice of hearing for that was also issued to the assessee on 10.03.2023 fixing the date of hearing on 17.3.2023. However, the notice sent to the assessee was returned by the Postal Department with the remark “left”. 9. A perusal of the record shows that the assessee was non-cooperative before the Tribunal from the very beginning. The non-cooperative attitude of the assessee is further strengthened by the withdrawal letter of the earlier Counsel who withdrew his power of attorney on account of non-cooperative attitude of the assessee by not giving him the required information for argument before the Tribunal. Further, the notice of hearing of the appeal was sent to the assessee through RPAD and such notice was never returned back by the Postal Authorities meaning thereby that the same has been duly served on the assessee. Under these circumstances, the argument of the learned Counsel for the assessee that the assessee should be given an opportunity to present his case does not carry any force. 10. We find the Hon'ble Supreme Court in the case of Pr. CIT vs. NRI Iron & Steel (P) Ltd (Supra) while dismissing the application filed by the assessee for recall of the judgment on the ground that the applicant company was not served with the MA Nos 8 and 9 of 2023 Achyutha Electricals and Industries Pvt Ltd Page 7 of 9 notice of SLP at the registered office of the company or on the assessee has observed as under: 12. During oral hearing on the Recall Application, a submission was made by the Counsel for the Applicant – Company that Mr. Sanjeev Narayan was not the “principal officer” of the Applicant – Company, and hence service could not have been effected upon him. Section 2(35) defines “principal officer” as follows : “2. In this Act, unless the context otherwise requires,— (35) "principal officer", used with reference to a local authority or a company or any other public body or any association of persons or anybody of individuals, means— (a) the secretary, treasurer, manager or agent of the authority, company, association or body, or (b) any person connected with the management or administration of the local authority, company, association or body upon whom the Assessing Officer has served a notice of his intention of treating him as the principal officer thereof ;” (emphasis supplied) The term ‘agent’ would certainly include a power of attorney holder. In State of Rajasthan v. Basant Nehata1 this Court held that : “A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent.” (emphasis supplied) Mr. Sanjeev Narayan admittedly being the Power of Attorney holder of the Applicant – M/s. NRA Iron & Steel Pvt. Ltd. for the A.Y. 2009 – 10 was the agent of the Assesse – Company, and hence Notice could be served on him as the agent of the Assessee – Company in this case. 13. The ground taken by Mr. Sanjeev Narayan that even though Notice was served on 13.12.2018, he assumed that they were “some Income Tax Return Documents” lacks credibility. It is difficult to accept that the envelope containing the dasti Notice from this Court was considered to be “some Income Tax Return documents”. The deponent does not at all disclose as to when the envelope containing the dasti Notice was ever opened. Furthermore, the ground urged that the Chartered Accountant was suffering from an advanced stage of cataract, and hence was constrained from informing his clients is again not worthy of credence. The dasti Notice was admittedly served on him on 13.12.2018 at his office, which was much prior to his surgery which he states took place on 04.01.2019. Mr. Narayan had sufficient time to inform the Applicant – Company of the proceedings, prior to his surgery. Furthermore, Mr. Narayan appeared before the Income Tax Authorities to represent the Applicant – Company and its sister concerns on various MA Nos 8 and 9 of 2023 Achyutha Electricals and Industries Pvt Ltd Page 8 of 9 dates prior to his surgery i.e. on 14.12.2018, 21.12.2018, 28.12.2018 and 29.12.2018. 14. Keeping in view the abovementioned facts and circumstances, this Court is satisfied that the Applicant – Company was duly served through their authorized representative, and were provided sufficient opportunities to appear before this Court, and contest the matter. The Applicant – Company chose to let the matter proceed ex parte. The grounds for Recall of the Judgment are devoid of any merit whatsoever. 15. The applicant-company having failed to make out any credible or cogent ground for Re-call of the judgment dated 5.3.2019, the Application for Re-call is dismissed with no order as to costs.” 11. Considering the totality of the facts of the case and in the light of the decision of the Hon'ble Supreme Court cited (Supra), we are of the considered opinion that the M.A filed by the assessee deserves to be dismissed. Accordingly, the M.A filed by the assessee is dismissed. M.A. No.9/Hyd/2023(A.Y 2011-12) (Arising out of ITA No. 1190/Hyd/2017). 12. After hearing both sides, we find the facts in the above M.A are identical to the facts in the case of M.A No.8/Hyd/2023. We have already decided the issue and the M.A filed by the assessee has been dismissed. Following similar reasoning the above M.A is also dismissed. 13. In the result, both the M.As filed by the assessee are dismissed. Order pronounced in the Open Court on 14 th September, 2023. Sd/- Sd/- (LALIET KUMAR) JUDICIAL MEMBER (R.K. PANDA) VICE-PRESIDENT Hyderabad, dated 14 th September, 2023. Vinodan/sps MA Nos 8 and 9 of 2023 Achyutha Electricals and Industries Pvt Ltd Page 9 of 9 Copy to: S.No Addresses 1 M/s. Achyutha Electricals & Industries Pvt. Ltd, Shed No.5B, Plot No.47, C.I.E (Extn.) Gandhi Nagar, Hyderabad 500037 2 Dy.CIT, Circle 11(1) 7 th Floor, IT Towers, AC Guards, Hyderabad 4 Pr. CIT-1, Hyderabad 5 DR, ITAT Hyderabad Benches 6 Guard File By Order