Sh. Susheel Kumar Sharma, Una V. ITO, Una

MA 91/CHANDI/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4110 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 1 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 25-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDRA KANTA
• Keywords: Reasonable cause
• Section: 274; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, SMC, CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER MISC. APPLICATION NO. 91/CHD/2018 (IN ITA NO.928/CHD/2017) ASSESSMENT YEAR: 2008-09 SHRI. SUSHEEL KUMAR SHARMA VS. THE ITO PROP. M/S SUN HILL PHOTO STORE, UNA NANGAL ROAD, UNA PAN NO. ABUPS4613A (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. AJAY JAIN REVENUE BY : SMT. CHANDRAKANTA DATE OF HEARING : 25/01/2019 DATE OF PRONOUNCEMENT : 12.03.2019 ORDER BY THE PRESENT MISCELLANEOUS APPLICATION FILED UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961 THE ASSESSEE PRAYS FOR RECALL OF THE EX-PARTE ORDER DT. 11/12/2017 IN ITA NO. 928/CHD/2017. 2. ADDRESSING THE APPLICATION FILED THE LD. AR SUBMITTED THA T IN THE CAUSE TITLE OF THE APPEAL OF THE ASSESSEE WHICH WAS DISMIS SED THERE IS A MENTION OF AN INCORRECT ASSESSMENT YEAR. THE APPEAL IT WAS SUBMITTED HAD BEEN FILED ASSAILING THE ORDER OF THE CIT(A) OF 2008-09 ASS ESSMENT YEAR WHICH FACT HAS BEEN CORRECTLY NOTED IN PARA 1 OF THE AFORESAID ORDE R HOWEVER IN THE CAUSE TITLE THE ASSESSMENT YEAR HAS BEEN MENTION ED MAY BE BY WAY OF A TYPOGRAPHICAL ERROR AS 2009-10. THE MISTAKE IN THE C AUSE TITLE WAS REQUESTED TO BE CORRECTED. 2.1 AT THE SAME TIME IT WAS ALSO HIS PRAYER THAT THE APP EAL OF THE ASSESSEE WAS DISMISSED IN LIMINE ON THE GROUNDS THAT THE DEFECT DESPITE OPPORTUNITY WAS NOT ADDRESSED BY THE ASSESSEE. RELYIN G UPON THE APPLICATION FILED IT WAS SUBMITTED THAT THE ASSESSEE HAD BE EN UNSUCCESSFULLY PURSUING THE CORRECTION OF THE DEFECT WITH THE AUTHORITIES AND HE GAVE AN ORAL UNDERTAKING THAT IT SHALL BE DULY ADDRESSED. 2.2 ACCORDINGLY, IT WAS HIS SUBMISSION THAT IN THE PECULIAR FACTS THE ORDER MAY BE RECALLED AS THE ASSESSEE HAS TAKEN STEPS TO CU RE THE DEFECTS POINTED OUT. M.A. 91/CHD/2018 IN ITA 928/CHD/2017 PAGE 2 OF 3 3. SINCE THE ASSESSMENT YEAR IN THE CAUSE TITLE WAS TAK EN FROM THE ACKNOWLEDGMENT CUM NOTICE MAINTAINED BY THE REGISTRY TH E REPORT OF THE REGISTRY, IN THE CIRCUMSTANCES WAS CALLED FORTH. 3.1 ON A PERUSAL OF THE SAME IT IS SEEN THAT IT IS ACCEPT ED BY THE REGISTRY THAT THE MISTAKE HAS OCCURRED AT THE REGISTRY LEVEL. THE SPECIFIC REPORT AVAILABLE ON RECORD IS EXTRACTED HEREUNDER: AS PER DIRECTION OF THE HONBLE BENCH DATED 16/01/2 019, IT IS SUBMITTED THAT THE FILE COVER OF THIS CASE WAS PREPARED BY ONE OF THE MTS THROUGH OUTSOURCING BASIS DUE TO HEAVY RUSH OF WORK AND SHE HAD WRITTEN A.Y. 2009- 10 INSTEAD OF 2008-09. IT IS FURTHER SUBMITTED THAT THE UNDERSIGNED ALSO C OULD NOT CHECK THOROUGHLY THE FILE COVER OF THE APPEAL DUE TO HEAVY RUSH OF W ORK AND OVERSIGHT. THEREFORE THE MISTAKE HAS OCCURRED. INCONVENIENCE CAUSED IS H IGHLY REGRETTED. SD/- SD/- SD/- (APPEAL CLERK) OS ASSISTANT REGISTRAR 4. THE LD. SR. DR WAS ALSO HEARD. IT WAS HIS SUBMISSION TH AT THE ORDER APPEALED AGAINST PERTAINED TO 2008-09 ASSESSMENT YEAR. 5. I HAVE HEARD THE SUBMISSIONS AND PERUSED THE MATER IAL AVAILABLE ON RECORD. IT IS SEEN THAT THE ORDER UNDER CHALLENGED IS TH E ORDER DT. 30/03/2017 OF CIT(A), PALAMPUR PERTAINING TO ASSESSMENT Y EAR 2008-09 WHICH FACT HAS CORRECTLY BEEN NOTED IN THE IMPUGNED ORD ER IN PARA 1. A PERUSAL OF FORM NO. 36 FILED ON BEHALF OF THE ASSESSEE ALSO SHOWS THAT IN COLUMN NO. 3 THE ASSESSMENT YEAR MENTIONED IS A.Y. AS 200 8-09. ACCORDINGLY THE MISTAKE IN THE CAUSE TITLE OF ITA NO. 928 /CHD/2017 IS CORRECTED AND THE SAME WOULD NOW INSTEAD OF ITA NO. 928/CHD/2017 ASSESSMENT YEAR : 2009-10 WOULD READ AS UNDER : ITA NO. 928/CHD/2017 ASSESSMENT YEAR : 2008-09 5.1 PROCEEDING TO ADDRESS THE PRAYER FOR RECALL, IT IS SEE N THAT IN THE PRESENT APPLICATION THE ASSESSEE HAS MADE THE FOLLOWING S UBMISSIONS PRAYING FOR A RECALL OF THE IMPUGNED EX-PARTE ORDER ON T HE FOLLOWING GROUNDS: 1. THE APPELLANT HAS FILED APPEAL INFORM NO 36 ON 05-06-2017 FOR AY 2008-09 AND ALSO ATTACHED ORDER OF ASSESSING OFFICE R & CIT(A) PALAMPUR FOR A 2008-09 . THE APPELLANT HAS RECEIVED ORDER DATED 11 /12/2017 IN WHICH ASSESSMENT YEAR 2009-10 HAS BEEN MENTIONED IN PLACE OF ASSESSMENT YEAR 2008-09. 2. THE APPELLANT HAS ATTACHED THE COPY OF ORIGINAL CHALLAN OF RS 10,000/- WITH FORM NO. 36, AT THE TIME OF FILING OF APPEAL F OR AY2008-09 . THE APPELLANT HAS RECEIVED DEFECT MEMO FROM REGISTRY OF HONBLE IT AT WHICH POINTED OUT M.A. 91/CHD/2018 IN ITA 928/CHD/2017 PAGE 3 OF 3 THAT HEAD IN WHICH TRIBUNAL FEE DEPOSIT WAS NOT REF LECTED IN COPY OF CHALLAN GIVEN BY BANK. 3. THE COUNSEL OF APPELLANT APPROACHED THE HDFC BAN K SECTOR 17C CHANDIGARH FOR ISSUANCE OF CERTIFICATE IN RESPECT H EAD IN WHICH APPEAL FEE HAS BEEN DEPOSITED , HOWEVER THE BANK HAS GIVEN THE PHOTOCOPY OF FEE CHALLAN DEPOSITED BY APPELLANT. 4. THE COUNSEL OF APPELLANT APPROACHED THE REGISTRY ON 13-11-2017 WITH PHOTOCOPY OF CHALLAN FOR CURE OF DEFECT , HOWEVER R EGISTRY HAS REFUSED TO TAKE THE PHOTOCOPY OF CHALLAN AS AY2008-09 HAS BEEN MENT IONED IN PHOTOCOPY OF CHALLAN & HEAD IN WHICH TRIBUNAL FEE DEPOSIT WAS NO T MENTIONED IN CHALLAN. 5. THE APPELLANT HAS APPROACHED THE ASSESSING OFFICER TO GIVE CHALLAN DETAILS REPORT & SAME HAS BEEN GIVEN BY ASSESSING OFFICER O N 15/11/2017 I.E AFTER THE DATE OF HEARING ON 14-11-2017 . 6. THAT THERE IS REASONABLE CAUSE FOR NON CURE OF DEFE CT BEFORE THE HEARING ON 14-11-2017 AS BANK HAS NOT GIVEN ANY CERTIFICATE FOR THE HEAD IN WHICH TRIBUNAL FEE HAS BEEN PAID & APPELLANT HAS RECEIVED REPORT FROM ASSESSING OFFICER ON 15/11/2017. I ALSO SUBMIT THAT I HAD PAID REQUISITE TRIBUNAL FEE OF RS 1 0000/- AT THE TIME OF FILING OF APPEAL. 7. THE APPELLANT UNDERTAKE TO CURE THE DEFECT POINTED BY REGISTRY. 6. THE LD. SR. DR APPEARING ON BEHALF OF THE ASSESSEE C ONSIDERING THE RECORD STATED THAT SHE HAS NO OBJECTION TO THE RECALLIN G OF THE ORDER AND A DECISION ON MERITS AFTER HEARING THE PARTIES. 7. I HAVE HEARD THE SUBMISSIONS AND SEEN THE RECORD. I FIND IN THE LIGHT OF THE SUBMISSIONS OF THE PARTIES BEFORE THE BENCH AND NO TING THE FACT THAT THE ASSESSEE HAS ALSO UNDERTAKEN TO CURE THE DEFECTS POINTED OUT BY THE REGISTRY, I FIND THAT THE ASSESSEE HAS SUFFICIENTLY ESTABLISH ED THAT HE IS SERIOUS IN PURSUING THE APPEAL FILED. ACCEPTING THE ORAL UND ERTAKING GIVEN BY THE LD. AR THE IMPUGNED EX-PARTE ORDER IS RECALLED EX ERCISING THE POWERS VESTED BY PROVISO TO RULE 24 OF THE ITAT RULES 1963. SUP PORT IS DRAWN FROM THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. ANSAL HOUSING CONSTRUCTION LTD. 274 ITR 131(DEL). THE REGISTRY IS DIRECTED TO FIX THE APPEAL FOR HEARING ON MERIT ON 19/03/2019 FOR WHICH DATE NO NOTICE OF HEARING IS TO BE ISSUED TO THE PARTIES AS THE DATE WAS ANNOUNCED ON THE DATE OF HEARING ITSELF IN THE PRESENCE OF THE PARTIES. 8. AS A RESULT MISC. APPLICATION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 12.03.2019. SD/- (DIVA SINGH) JUDICIAL MEMBER DATED : AG/POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT, TH E CIT(A), THE DR ASSTT.REGISTRAR ITAT CHANDIGARH