THE BRANCH MANAGER, BANK OF INDIA,FATEHGARH V. ITO., (TDS), ALIGARH

MA 2/AGR/2019

AI Insights

The case involves the Branch Manager of M/s Bank of India, Fatehgarh Branch, who filed a miscellaneous application seeking the recall of an ex-parte order dismissing their appeal for non-prosecution. The original appeal was dismissed because no representative appeared on behalf of the bank, leading the Tribunal to presume a lack of interest in prosecuting the appeal. The bank argued that the notice of hearing might not have reached the correct officer due to a change in management. The Tribunal found that the dismissal of the appeal did not adhere to the procedural requirements of Rule 24 of the ITAT Rules, 1963, which led to the recall of the order and the restoration of the appeal for a decision on its merits.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 47028 (ITAT-AGRA)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-04-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 1999-2000
• Other Referred Cases: Tribhuwan Kumar & Others v CIT, CIT v Multiplan India P. Ltd., K. T. Udeshi v CIT, Mahaveer Prasad Jain v CIT, Rajendra Prasad Boarah v ITAT & Others, CIT Vs Ansal Housing & Constructions, Saurav Jhunjunwala Vs CIT, CIT v Estate of late Tukojirao Holkar v CWT
• Laws Referred To: Income Tax Act, 1961, ITAT Rules, 1963
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHAILENDER SHRIVASTAVA
• Keywords: Reasonable cause; TDS; Non passing of speaking order
• Section: 254(2); 274; 20

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH DB BEFORE SMT. ANNAPURNA GUPTA, ACCOUNTANT MEMBER AND SHRI SUNIL KUMAR SINGH, JUDICIAL MEMBER M.A. No.- 02/Agr/2019 Arising Out of ITA No:- 358/Agr/2017 (Assessment Year: 1999-2000) The Branch Manager, M/s Bank of India, Fatehgarh Branch, 1137, Talaiya Lain, Fatehgarh, Farrukhabad. Vs. Income Tax Officer, (TDS), Aayakar Bhawan, Aligarh. PAN No: AGRB10494B APPELLANT RESPONDENT Assessee by : None Revenue by : Shri Shailender Shrivastava, Sr.DR Date of Hearing : 28.03.2025 Date of Pronouncement :28.03.2025 ORDER PER ANNAPURNA GUPTA, ACCOUNTANT MEMBER: The present application filed by the assessee seeks recall of the order of the ITAT in ITA No. 358/Agra 2017 dated 05.06.2018 dismissing assesses appeal ex parte for non-prosecution. MA no.- 02/Agr/2019 The Branch Manager. 2 2. We have noted that the order passed is a non speaking order without dealing with the merits of the case. Rule 24 of the ITAT Rules, 1963 prescribes exparte orders to be disposed off on merits. Since the impugned order passed is not in accordance with Rule 24 of the ITAT Rules and further noting that the assessee in its application has given reasonable cause for not appearing on the date of hearing which is evident from the contents of the application produced before us which read as under: “ 2. The Applicant prefers this Application under section 254(2) of the Income Tax Act, 1961 (the 'Act') read with Rule 24 of the Income Tax Appellate Rules 1963 (the 'Rules') against the order dated 05.06.2018 passed by Hon'ble Income Tax Appellate Tribunal, Agra Bench, Agra in ITA No. 358/Agra/2017 for Assessment year 1999-2000. A copy of the order dated 05.06.2018 is enclosed herewith as Annexure I hereto. 3. By the said order dated 05.06.2018, the appeal of the Applicant has been treated as un-admitted and dismissed in limine for the reason that nobody appeared on behalf of the Appellant and no adjournment Application was even filed therefore it has been presumed that assessee (Applicant) was not interested to prosecute the Appeal. The Applicant herein in ITA No. 358/Agra/2017 most respectfully submits that the Hon'ble Tribunal was not justified in concluding that the Appellant was not interested to prosecute the Appeal andthereby dismissing the Appeal in limine. Appellant is very keen to get the Appeal disposed off on merits. 5. It is respectfully submitted that the Hon'ble Tribunal has observed that the notice of hearing was sent to the assessee on 10.05.2018 which has not been returned unserved. Inspite thereof, none has put in appearance on the date of hearing on behalf of the assessee, therefore, the Hon'ble Bench presumed that assessee is not serious to pursue its Appeal. In the circumstances, Hon'ble Tribunal dismissed the Appeal in default. MA no.- 02/Agr/2019 The Branch Manager. 3 6. In this connection, it is most respectfully submitted that the assessee is Nationalised Bank and therefore, it may be possible that the notice of hearing could not be served upon the concerned officer of the bank. As stated in the ITAT's order that the notice was sent to assessee on 10.05.2018. At that time, Shri Hem Nath Gautam was the branch manager of the assessee bank therefore, there was a change in the incumbency and Shri Shyam Narayan Dhuria had joined the bank on 12.06.2018 and therefore, he had no knowledge regarding any appeal before the Hon'ble ITAT, Agra.In evidence of the above statement of fact Affidavit of Shri Shyam Narayan Dhuria, Branch Manger of the appellant bank is being filed herewith for the kind consideration of the Hon'ble Bench as ANNEXURE - II. 7. It is further submitted that Hon'ble Tribunal further misdirected itself in holding the appeal as un-admitted and in not deciding the same ex-parte which was required to be done as per rule 19 and rule 20 of Income tax (Appellate Tribunal) Rules, 1963. 8. It is most humbly submitted that rule 19(2) is not applicable in the case as such rule is applicable only in case of defects in filing of the appeal. Various courts have held that filing of appeal before Hon'ble Tribunal is a matter of statutory right and not subject to admission or otherwise discretion of the Tribunal. 9. Hon'ble Rajasthan High Court (Jaipur Bench) in the case of Tribhuwan Kumar & Others v CIT reported as (2007) 294 ITR 401 held that on non representation of assessee on the date of hearing, Tribunal can proceed with the hearing of the case ex-parte, but it was not justified in holding that appeal before it was not maintainable by relying on the decision of ITAT, Delhi Bench in thecase of CIT v Multiplan India P. Ltd. reported as (1991) 38 ITD 320. 10. Similar view has been expressed by Hon'ble Bombay High Court in the case of K. T. Udeshi v CIT reported as (1978) 114 ITR 542, M. P. High Court in Mahaveer Prasad Jain v CIT reported as (1988) 172 ITR 331, Gauhati High Court in the case of Rajendra Prasad Boarah v ITAT & Others reported as (2008) 302 ITR 243, Honble Delhi High Court in the case of CIT Vs Ansal Housing & Constructions reported as (2005) 274 ITR 131 (Del.) and Honble Calcutta High Court in the case of Saurav Jhunjunwala Vs CIT (2005) 273 ITR 225 (Cal.) 11. It is further submitted that case before Hon'ble M. P. High Court in case of CIT v Estate of late Tukojirao Holkar v CWT reported as (1997) 223 ITR 480 is entirely on different footing as same atter of reference pertained to power of High Court in the matter application. Whereas the reference or appeal before High Court is a matter of discretion of the appellate Court, no MA no.- 02/Agr/2019 The Branch Manager. 4 such discretion is vested with the appellate Tribunal. Therefore, said case is wholly inapplicable. 12. The appellant most respectfully submits that the event mentioned above would amply indicate that the appellant was very much interested in prosecuting the appeal and the otherwise observation in the subject order was not justified. 13. The appellant, therefore, prays that in the facts and circumstances, the ex-parte order dated 05.02.2016 be very kindly be recalled by the Hon'ble Tribunal by exercising powers vested with it under section 254(2) of the 'Act' read with proviso to rule 24 of Appellate Tribunal Rules, 1963 and the original appeal preferred by the applicant be restored for decisions on merits of the cases. The applicant has deposited fee prescribed for this application amounting to Rs. 50/- vide Challan No.04838 dated 23.11.2018 of HDFC (e-payment) (BSR: 0510308). The receipt of challan (in original) is being enclosed as Annexure III hereto.” 3. We consider it fit to recall the order of the ITAT in ITA No. 162/Agra/2018 dated 24.05.2018 to be fixed afresh for hearing on the 22nd of April 25 4. The Miscellaneous application of the assessee is accordingly allowed. Order pronounced in the open court on28.03.2025 Sd/- Sd/- (SUNIL KUMAR SINGH) (ANNAPURNA GUPTA) JUDICIAL MEMBER ACCOUNTAN MEMBER Dated: 07.04.2025 Pooja/- MA no.- 02/Agr/2019 The Branch Manager. 5 Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT AGRA "