SMT. FARIDA AB.KADAR MEMON,PUNE V. INCOME-TAX OFFICER, WARD - 5 (4), PUNE

MA 370/PUN/2022

AI Insights

The case involves Smt. Farida AB. Kadar Memon, who filed Miscellaneous Applications seeking to recall ex-parte orders passed by the ITAT. The applications were based on the grounds that the assessee, a senior citizen and unable to attend the hearings due to health and mobility issues, had her case managed by a deceased tax professional, leading to a lack of representation and communication with the Tribunal. The Tribunal acknowledged the absence of proper hearing and the non-consideration of the adjournment request, which justified recalling the earlier orders and scheduling a fresh hearing.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 39519 (ITAT-PUNE)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-03-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Laws Referred To: Income Tax (Appellate Tribunal Rules), 1963, Income Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARVIND DESAI
• Section: 147; 148; 143(3); 143(2)

Judgement Text

" आयकर अपीलीय अधिकरण “एक सदस्य मामला” न्यायपीठ पुणे में । IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, PUNE BEFORE SHRI MANISH BORAD, ACCOUNTANT MEMBER AND MS. ASTHA CHANDRA, JUDICIAL MEMBER आयकर अपील सं. / MA Nos.369 & 370/PUN/2022 (Arising out of ITA Nos.1653 & 1654/PUN/2019) निर्धारण वर्ा / Assessment Years: 2004-05 & 2005-06 Smt. Farida AB. Kadar Memon, 352, Ghorpade Peth, Pune-411042 Maharashtra PAN : ABNPM7071P Vs. ITO, Ward – 5(4), Pune अपीलधर्थी /Applicant प्रत्यर्थी / Respondent Assessee by : N O N E Department by : Shri Arvind Desai Date of hearing : 14-02-2025 Date of Pronouncement : 18-03-2025 आदेश / ORDER PER ASTHA CHANDRA, JM : By these two Miscellaneous Application(s) the assessee seeks to recall the ex-parte order dated 26.05.2022 passed by this Tribunal in ITA No. 1653/PUN/2019 and ITA No. 1654/PUN/2019 pertaining to the Assessment Year 2004-05 and 2005-06 respectively under the provisions of Rule 24 of the Income Tax (Appellate Tribunal Rules), 1963 read with section 254 of the Income Act, 1961. 2. We have heard the Ld. DR as none appeared before the Tribunal for and/or on behalf of the assessee when the matter came up for hearing before us. 3. The assessee has made the following common assertions and the submission in her Miscellaneous Application(s): “I am an Old Lady, Senior Citizen. Unable to move out. My case was being looked after by Mr. Imtiaz Mulla, ITP who expired on 26/04/2022 after his heart surgery. Detailed facts as to reason for adjournment vide application dated 02/05/2022 for date fixed on 05/05/2022 which was adjourned to 24/05/2022. 2 MA Nos.369 & 370/PUN/2022, AYs 2004-05 & 2005-06 On said date itself, long date was requested and was told that, you may re apply on said date and same will be adjourned. Assessee has submitted an application on 20/05/2022 requesting adjournment, for hearing fixed on 24/05/2022, Copy enclosed which is duly Acknowledged. Assessee was under bonafide impression that case will be adjourned as stated at earlier occasion. Nobody could attend, as I am an Old Lady, suffering from High BP and Sugar and not having good relations with my son, therefore a person from office of Late Mr. Imtiaz Mulla at my request submitted application on 20/05/2022, in advance to Your Office. Probably, the Adjournment application was not put up or was not brought to your office. I am shocked to receive the Order of the ITAT for A.Y. 2004-05 & 2005-06 without even taking note of my adjournment application. I further learnt that all my Grounds are not dealt with by the Honourable Bench. The Ground No.4 is as to the estimate of Sale by Sale Tax Department in Order in Case of Ahmed Abdul Kader Memon and estimate of Profit Percentage. What is the basis of estimate of Sale by the Sales Tax Department. The Order only deals with Profit Percentage. Other Grounds as per Appeal Memon are not at all Adjudicated those are; 1. Assessment Order Passed by Assessing Officer is without Jurisdiction and Bad in Law as for Return Submitted on 17.03.2006, Notice u/s 143(2) is issued on 24.10.2007 and served on 25.10.2007, which was mandatory to serve before 31.03.2007 i.e. one year from the end of the Financial Year in which Return is furnished. Appellant Prays for cancellation of the Order. 2. Assessment Order is passed by the Assessing Officer u/s 148 r.w. 147 which is Bad in Law. Assessment Order has to be passed u/s 143(3) of 144 only. In Fact no Notice u/s 148 is issued or served. Appellant Prays for cancellation of the Order. 4. Commissioner of Income tax (Appeals) has erred in confirming the estimated Sale as adopted by Assessing Officer, as per Sales Tax Order of Mr. Ahmed Abdul Kader Memon as Sale of the Assessee and Confirming estimation of Profit 15%. 5. Without Prejudice to above CIT(A) has erred in not providing Remand Report and Basis as to estimate by Sales Tax Department AND estimate of Profit @ 15% (Though Remand Report was called) Copy of Remand Report called by CIT(A) is not Provided to Assessee. Very first Ground for A.Y.2005-06 as per the dates mentioned in the Assessment Order is clear that Order is Bad in Law, Mr. Imtiaz Mulla was seeking information from Assessing Officer's record as to Notices and other papers as stated in application for adjournment dated 02/05/2022. Applicant humbly prays for recalling the Order and fix for Fresh adjudication.” 3 MA Nos.369 & 370/PUN/2022, AYs 2004-05 & 2005-06 4. We have perused the impugned order of the Tribunal, the present Miscellaneous Application(s), submission(s) made by the assessee as well as other material available on records. In the Miscellaneous Application(s), the assessee has stated that the Tribunal has disposed of the impugned appeal(s) (ITA No. 1653 & 1954/PUN/2019) on 26.05.2022 ex-parte, without considering the assessee’s request for adjournment. The assessee has stated the reasons (reproduced above) for seeking adjournment on 24.05.2022, the date fixed for hearing in the said appeals. We find that there was sufficient reason for non- appearance of the assessee before the Tribunal on 24.05.2022. However, it is revealed from the records that the said request for adjournment was rejected by the Bench without assigning any reasons and the order in ITA Nos.1653 & 1654/PUN/2019 was passed ex-parte partly allowing the appeal of the assessee. It is also the grievance of the assessee that the legal ground and some other grounds on merits taken by the assessee have not been adjudicated by the Tribunal. 5. In view of the above, in our considered opinion, there was no proper and adequate opportunity of hearing granted to the assessee to present and substantiate its case before this Tribunal. Considering the totality of facts and in the circumstances of the case and in the interest of justice and in the absence of any objection from the side of the Ld. DR, we deem it fit to recall the order of the Tribunal by giving an opportunity of fresh hearing to the assessee to present and substantiate its case. Accordingly, the order dated 26.05.2022 passed by the Tribunal in ITA Nos.1653 & 1654/PUN/2019 is hereby recalled and the registry is directed to fix the aforesaid appeal for hearing in due course before the regular Bench. The fresh date of hearing shall be informed to both the parties by issue of notice(s) of hearing by the registry. 6. In the result, both the Miscellaneous Application(s) of the assessee are allowed. Order pronounced in the open court on 18th March, 2025. Sd/- Sd/- (Manish Borad) (Astha Chandra) ACCOUNTANT MEMBER JUDICIAL MEMBER पुणे / Pune; ददन ांक / Dated : 18th March, 2025. रदि 4 MA Nos.369 & 370/PUN/2022, AYs 2004-05 & 2005-06 आदेश की प्रनिनलनप अग्रेनर्ि / Copy of the Order forwarded to : 1. अपील थी / The Appellant. 2. प्रत्यथी / The Respondent. 3. The Pr. CIT concerned. 4. धिभागीय प्रधिधिधि, आयकर अपीलीय अधिकरण, “एक सदस्य मामला” बेंच, पुणे / DR, ITAT, “SMC” Bench, Pune. 5. ग र्ड फ़ इल / Guard File. //सत्य दपत प्रदत// True Copy// आदेश नुस र / BY ORDER, िररष्ठदनजीसदिि / Sr. Private Secretary आयकरअपीलीयअदधकरण ,पुणे/ ITAT, Pune "