NIRMAL DUTTA,JALPAIGURI V. A.O./I.T.O., WARD - 1(4), SILIGURI, SILIGURI

MA 8/KOL/2025

AI Insights

The case revolves around an appeal by Nirmal Dutta against an ex parte order of the Income Tax Appellate Tribunal, Kolkata, concerning the Assessment Year 2022-23. The appeal was initially dismissed due to the non-appearance of Dutta's advocates, who were unable to attend the hearing because of a political bandh in West Bengal. Dutta filed a Miscellaneous Application under Section 254(2) of the Income Tax Act, 1961, seeking to recall the ex parte order, supported by an affidavit explaining the circumstances of his advocates' non-appearance. The Tribunal, referencing Rule 24 of the Income-Tax (Appellate Tribunal) Rules, 1963, and precedents, accepted the application, citing sufficient cause for the non-appearance and restored the appeal for a fresh hearing.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 46796 (ITAT-KOLKATA)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-04-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2022-2023
• Other Referred Cases: Commissioner of Income-tax, Kolkata-IV v. Alcove Industries Ltd. [2016] 65 taxmann.com 311 (Calcutta)
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside; Gift
• Section: 250; 254(2)

Judgement Text

"आयकर अपीलीय अधिकरण कोलकाता 'एसएमसी' पीठ, कोलकाता में IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA ‘SMC’ BENCH, KOLKATA श्री प्रदीप क ुमार चौबे, न्याधयक सदस्य एवं श्री राक ेश धमश्रा, लेखा सदस्य क े समक्ष Before SHRI PRADIP KUMAR CHOUBEY, JUDICIAL MEMBER & SHRI RAKESH MISHRA, ACCOUNTANT MEMBER M.A. No.: 8/KOL/2025 Arising out of I.T.A. No.: 1484/KOL/2024 Assessment Year: 2022-23 Nirmal Dutta Vs. A.O./I.T.O., Ward-1(4), Siliguri (Appellant) (Respondent) PAN: AGRPD0623M Appearances: Assessee represented by : Sujit Basu and Rajib Mukherjee, AR. Department represented by : None (Adjourment letter Filed). Date of concluding the hearing : March 21st, 2025 Date of pronouncing the order : April 9th, 2025 ORDER PER RAKESH MISHRA, ACCOUNTANT MEMBER: The instant Miscellaneous Application at the instance of the assessee filed u/s 254(2) of the Income Tax Act, 1961 is directed against the order dated 17.09.2024 of this Tribunal in ITA No. 1484/KOL/2024 pertaining to AY 2022-23 with the request to call back the ex parte order passed by the Tribunal. Page | 2 M.A. No.: 8/KOL/2025 AOO I.T.A. No.: 1484/KOL/2024 Assessment Year: 2022-23 Nirmal Dutta. 2. None appeared on behalf of the Department on 21.03.2025 when the case was adjourned from 07.03.2025 for filing an affidavit by the assessee. The contents of the affidavit filed are as under: “I, Sri Nirmal Dutta, S/o Late Niranjan Dutta, aged about 59 years, resident of Madhya Shantinagar, Near Pipeline, B.O.-Dabgram (P), District- Jalpaiguri, West Bengal-734006, Hindu by religion, business by occupation. Aadhar No. 3986-6680-1335, do hereby solemnly affirm and declare as follows:- 1. That I assessed to income tax under PAN: AGRPD0623M. 2. That against the appellate order u/s 250 dated 9.5.2024, passed by Ld. CIT(A), NFAC, Delhi in my case for Assessment Year 2022-23, I had preferred an appeal before the Hon'ble Income Tax Appellate Tribunal, Kolkata vide ITA No. 1484/Kol/2024, through Advocate Sujit Basu and Advocate Rajib Mukherjee of Siliguri. 3. That due Vakalatnama (power) was signed by me giving necessary powers to the aforesaid Advocates and they were/are my appointed lawyers to represent me before the Hon'ble ITAT. Kolkata. 4. That the hearing of my case was fixed before the Hon'ble SMC bench of ITAT, Kolkata on 28.8.2024. 5. That my aforesaid Advocates reached Kolkata on 27th August evening to attend the hearing of my case on 28th August morning before the Hon'ble SMC bench, ITAT Kolkata. 6. That there was a Bangla Bandh called by some political parties on 28th August, 2024. 7. That my aforesaid Advocates did not get any taxi in the morning of 28th August, 2024 due to Bangla Bandh to reach to Hon'ble ITAT. Kolkata to attend the hearing of my case on time 8. That my case had been decided ex-parte by the Hon'ble SMC bench, ITAT Kolkata for non appearance of my Advocates and in absence of explanations and evidences in support of my case. The Hon'ble ITAT, SMC bench had dismissed my appeal vide order dated 17th September, 2024. 9. That there was no will full default on my part or on the part of my Advocates for non appearing before the Hon'ble ITAT, Kolkata for hearing of my case. The reason of their non appearance was beyond their control. As my Advocates were outside lawyers, they did not have their own vehicle at Page | 3 M.A. No.: 8/KOL/2025 AOO I.T.A. No.: 1484/KOL/2024 Assessment Year: 2022-23 Nirmal Dutta. Kolkata and they had to depend on hired taxies, which they did not get due to Bangla Bandh on 28th August, 2024. 10. That despite of their level best efforts, my Advocates could not reach to Hon'ble ITAT, Kolkata on 28th August morning and they could not submit Vakalatnama executed by me in their favour, giving them necessary powers to represent me before the Hon'ble ITAT. Kolakata. They also could not produce evidences in support of the gifts received by me from my close relatives, being affidavits sworn by the Donors. 11. That as there was sufficient cause for non appearance of my Advocates before the Hon'ble ITAT. Kolkata to attend my case on 28th August, 2024 morning, I have preferred an application under Rule 32 of ITAT Rules, 2017 (Rule 24 of ITAT Rules, 1963) for restoration of my appeal by setting aside the ex-parte order dated 17th September, 2024 on 21.10.2024 before the Hon'ble ITAT, Kolkata. 12. That the hearing of my prayer had been fixed by the Hon'ble ITAT, Kolkata on 7.3.2025 vide appeal No. MA 8/KOL/2025 at SMC bench and my aforesaid Advocates were duly appeared for hearing before the Hon'ble SMC bench, ITAT, Kolkata. After hearing, the Hon'ble SMC bench was kind enough to fix the date for hearing of my case being MA No. 8/KOL/2025 on 21.3.2025. 13. That I swear this affidavit to declare and confirm that Advocate Sujit Basu and Advocate Rajib Mukherjee were my appointed Advocates to represent me before the Hon'ble ITAT, Kolkata both in Income Tax Appeal No. 1484/KOL/2024 and also in Appeal No. MA 8/KOL/2025 for which due Vakalatnama was given by me to them. But, due to oversight they did not submit the same before the Hon'ble SMC bench of ITAT, Kolkata. 14. That I also swear this affidavit to declare and confirm that I am having relevant documents in support of gifts received by me from my close relatives, being affidavits sworn by Donors before the Notary Public Siliguri. 15. That wear this affidavit to submit before the Hon'ble ITAT, Kolkata, SMC bench to declare the above facts. 3. We have heard the ld. Counsel for the assessee. Rule 24 of the Income-Tax (Appellate Tribunal) Rules, 1963 states 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: Page | 4 M.A. No.: 8/KOL/2025 AOO I.T.A. No.: 1484/KOL/2024 Assessment Year: 2022-23 Nirmal Dutta. 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. 3.1 Further, in Commissioner of Income-tax, Kolkata-IV v. Alcove Industries Ltd. [2016] 65 taxmann.com 311 (Calcutta), it has been held that where the assessee was prevented by sufficient cause from appearing before Tribunal, Tribunal was justified in recalling its ex parte order and rehearing appeal. The relevant extract from the order is as under: 3. Mrs. Anupa Banerjee, learned advocate for the respondent submits that after ex parte order dated 21st February, 2003 was passed, her client had filed a Miscellaneous Petition under Section 254(2) of the Act before the Tribunal praying for recall of the order dated 21st February, 2003 which is not annexed to the Paper Book. Submission is though it has been submitted on behalf of the appellant that the Tribunal has no power to recall the order and to rehear the appeal on merits, however, in view of the judgments of the High Court in ITO v. Murlidhar Sarda [1975] 99 ITR 485 and Khaitan Paper & Industries Ltd. v. CIT [2005] 273 ITR 234/148 Taxman 326 (Cal.), as the settled position of law is the Tribunal has the power to restore and rehear an appeal already disposed of on merits and as in the instant case it is evident from the documents filed that the assessee was prevented by sufficient cause from not appearing before the Tribunal, the Tribunal was justified in recalling the order and rehearing the appeal. Let a copy of the Miscellaneous Petition under section 254(2) of the Act filed before the Tribunal, furnished be kept on record. 4. Admittedly Paper Book filed by the appellant does not contain the Miscellaneous Petition filed by the respondent before the Tribunal for recalling the order dated 21st February, 2003 and the order passed thereon. As it appears that the Tribunal had recalled the order dated 21st February, 2003 and had proceeded to hear the appeal afresh after giving notice to the parties and had passed the impugned order, in view of the law laid down in Murlidhar Sarda (supra) and in Khaitan Paper & Industries Ltd (supra), the question no.(i) is answered in the negative, against the Revenue and in favour of the assessee. Hence, in view of the evidence filed before us, we are of the view that the assessee had sufficient cause for non-appearance and the ex parte order Page | 5 M.A. No.: 8/KOL/2025 AOO I.T.A. No.: 1484/KOL/2024 Assessment Year: 2022-23 Nirmal Dutta. needs to be set aside and the appeal be restored. The order in I.T.A. No. 1484/KOL/2024 is hereby recalled and the appeal is restored. The Registry may fix the appeal in the normal course of hearing. 4. In the result, the Miscellaneous Application filed by the assessee is allowed. Order pronounced in the open Court on 9th April, 2025. Sd/- Sd/- [Pradip Kumar Choubey] [Rakesh Mishra] Judicial Member Accountant Member Dated: 09.04.2025 Bidhan (P.S.) Page | 6 M.A. No.: 8/KOL/2025 AOO I.T.A. No.: 1484/KOL/2024 Assessment Year: 2022-23 Nirmal Dutta. Copy of the order forwarded to: 1. Nirmal Dutta, Middle Santinagar, Ghugumali, B.O.- Dabgram (P), Jalpaiguri, West Bengal, 734006. 2. A.O./I.T.O., Ward-1(4), Siliguri. 3. CIT(A)-NFAC, Delhi. 4. CIT- 5. CIT(DR), Kolkata Benches, Kolkata. 6. Guard File. //True copy // By order Assistant Registrar ITAT, Kolkata Benches Kolkata "