Shri Jaydeepsinh Vajesinh Dodiya, Ahmedabad V. The Jt. C.I.T., Range-7(1), Ahmedabad

MA 99/AHD/2020

• Counselvise Citation: [NaN] 107 COUNSELVISE.COM (IT) 2151 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 10 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-01-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 03-03-2020
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S.S. SHUKLA
• Assessee Lawyers: ADITI SHETH
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92

Judgement Text

, ‘SMC’ । IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, AHMEDABAD (Convened through Virtual Court) BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMEBR & SHRI AMARJIT SINGH, ACCOUNTANT MEMEBR MISCELLANEOUS APPLICATION No. 99/Ahd/2020 (in ITA No. 2429/Ahd/2016) ( Assess ment Ye ar : 2012-13) Sh ri Jay dee ps i nh Vaj es in h Do diy a At. P os t Ra mp ur a C hek hl a, Tal . Sa na nd , Dis t. Ah me da bad - 3 82 2 10 / V s . Th e Jt. C o mmi ss io ner o f In co me T ax Ra nge 7( 1) , Ah me dab ad - 38 00 09 / /P A N / G IR N o . : A F BP D 2 3 6 8 C ( Appellant) . . ( / Respondent) /Appellant by : Ad iti S he th , A. R. / Respondent by : Shri S. S. Shukla, Sr. D.R. D a t e o f H e a r i n g 01/10/2021 !"# /D a t e o f P r o n o u n c e m e n t 03/01/2022 ORDER PER MAHAVIR PRASAD, JM: This miscellaneous application in ITA No.2429/Ahd/2016 has been filed on behalf of the assessee-applicant for setting aside the order dated 27.09.2017 passed by the Tribunal dismissing the appeal of the assessee ex parte for want of prosecution. MA No. 99/Ahd/2020 [Shri jaydeepsinh V. Dodiya vs. JCIT] AY 2012-13 - 2 - 2. The Tribunal stated in its order that notice of the hearing was served on the assessee, however, at the time of hearing, none appeared on behalf of the assessee nor adjournment application was filed. Therefore, the Tribunal took the view that assessee was not interested in prosecuting the said appeal. 3. Consequently, this Tribunal dismissed the appeal of the assessee. This application if barred by time of 624 days. The contention of the assessee is that the applicant ha s moved present application under Rule 24 of the Income Tax Rules, 1963 which contemplated as under: “24. Where, on the day fixed for hearing or on any other date to which the hearing may be adjourned, the appellant does not appear in person or through an authorised representative when the appeal is called on for hearing, the Tribunal may dispose of the appeal on merits after hearing the respondent: Provided that where an appeal has been disposed of as provided above and the appellant appears afterwards and satisfies the Tribunal that there was sufficient cause for his non-appearance, when the appeal was called on for hearing, the Tribunal shall make an order setting aside the ex parte order and restoring the appeal.” 4. The learned AR argued that Rule 24 says in case Tribunal disposses off any appeal on any appeal on merits after hearing the respondent and later, assessee satisfies the Hon'ble Tribunal that there was a "sufficient cause" for his non-appearance, then the Tribunal shall pass an order setting aside the ex-parte order and restore the appeal. She further argued that ITAT ought to have disposed of the appeal on merits. The applicant has moved an application supported by affidavit that his father who was assessee in the present case was passed away and all details and papers were with him and only after his father’s death he came to know about the pendency of this case. The learned AR in support of its contention cited an order of co-ordinate bench in Mansukhbhai M. Donga vs. ITO M.A. Nos. 137 & 138/Ahd/2017, order dated 04.05.2021 wherein in similar MA No. 99/Ahd/2020 [Shri jaydeepsinh V. Dodiya vs. JCIT] AY 2012-13 - 3 - circumstances, co-ordinate bench has condoned the delay with following observations: “5. We have heard both the parties and gone through the records carefully. Admittedly, the assessee has filed Misc. Application beyond the time limit prescribed under section 254(2) of the Act. However, this being an ex-parte order, the rule 24 of ITAT rules comes to rescue the assessee. It does not stipulate any time limit for filing the Miscellaneous Application for recalling the order but requires there has to be reasonable cause for non-appearance on the date of hearing. Besides in this case, no merit has been considered, simply dismissed the appeal. In our opinion, not only in the interest of justice and also on the grounds of principles of natural justice, these appeals deserve to be recalled. The Hon'ble Delhi High Court in the case of Om Prakash Sangwan vs. ITO reported in 94 taxmann.com 394 has as under:- "3. Rule 24 of the Income Tax Appellate Tribunal's Rules and the other provisions of both the Income Tax Act and Rules indicate that the IT AT has to decide the appeals or matters before it on the merits. In these circumstances, the ITAT's failure to do so, implies that it exceeded its jurisdiction and instead of deciding on the merits, rejected the appeal merely for non-prosecution. In the given circumstances and keeping in view the fact that Rule 25 does not stipulate any period of limitation within which the aggrieved party can approach the Tribunal, it is open to the appellant to approach the Tribunal with a suitable application for restoration of the appeals; in such event, the appeals could be considered on their merits and decided in accordance with la\v after hearing both the parties, provided, the application is presented before the ITAT within thirty days from today. Appeals are disposed of in the above terms. " In view of the above and considering the reasons for non-appearance of the ld. counsel of the assessee as discussed above, the said applications are allowed and Registry is directed to list the appeal for hearing in due course.” 5. The learned AR also cited an order of Hon’ble Delhi High Court in Om Prakash Sangwan vs. ITO [2018] 94 taxmann.com 394 (Delhi) wherein Hon’ble Court has held that assesee’s appeal for non-prosecution should not have been dismissed rather should have been decided on merit. The learned AR also cited order of Hon’ble Madras High Court in Government Telecommunication Employees Cooperative Society Ltd. vs. ITO [2019] 111 taxmann.com 28 (Madras) Wherein it was held that Tribunal dismissed the appeal filed by the assessee on the ground that none appeared on behalf of the assessee when matters were called upon and whether the Tribunal could not dismiss appeals in limine and issue was to be restored back to the file of the ITAT to decide the matter on merit. MA No. 99/Ahd/2020 [Shri jaydeepsinh V. Dodiya vs. JCIT] AY 2012-13 - 4 - Respectfully following the Hon’ble High Court orders and in parity with the Tribunal’s order, we condone the delay. Since matter was not decided on merit, so, we restore this matter back to its original number and direct the Registry to re-fix this matter as per law under intimation to both the parties. 6. In the result, miscellaneous application filed by the assessee is allowed. Sd/- Sd/- ( AM ARJIT SI NGH) (MAHAVIR PRASAD) ACC OUNTANT MEMB ER JUDICIAL MEMBER Ahmedabad: Dated 03/01/2022 True Copy S.K.SINHA ेश ! " #े" / Copy of Order Forwarded to:- $ / Revenue 2 द / Assessee ' ( )* + / Concerned CIT 4 + - / CIT (A) . / 0 1 2 2 )*3 )* #3 45द ( द / DR, ITAT, Ahmedabad 6 1 78 9 / Guard file. By order/ द श 3 उ / 4 )* #3 45द ( द । This Order pronounced in Open Court on 03/01/2022