Shri Om Khemraj Gahlot, RAJSAMAND v. ACIT (OSD), UDAIPUR

MA 18/JODH/2014 | 2008-2009
Pronouncement Date: 04-04-2014 | Result: Allowed

Appeal Details

RSA Number 1823324 RSA 2014
Assessee PAN ACWPG1947K
Bench Jodhpur
Appeal Number MA 18/JODH/2014
Duration Of Justice 21 day(s)
Appellant Shri Om Khemraj Gahlot, RAJSAMAND
Respondent ACIT (OSD), UDAIPUR
Appeal Type Miscellaneous Application
Pronouncement Date 04-04-2014
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 04-04-2014
Assessment Year 2008-2009
Appeal Filed On 14-03-2014
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH JODHPUR BEFORE SHRI HARI OM MARATHA JUDICIAL MEMBER AND SHRI N.K. SAINI ACCOUNTANT MEMBER MA NO.18/JODH/2014 (ARISING OUT OF ITA NO. 38/JODH/2012) ASSESSMENT YEAR : 2008-09 SHRI OM KHEMRAJ GAHLOT VS. THE ACIT (OSD) SADAR BAZAR RAJASMAND. RANGE 2 UDAIPUR. PAN: ACWPG 1947 K (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJENDRA JAIN. DEPARTMENT BY : SHRI N.A. JOSHI D.R. DATE OF HEARING : 04-04-2014 DATE OF PRONOUNCEMENT : 04-04-2014 ORDER PER N.K. SAINI A.M. THIS MISCELLANEOUS APPLICATION ARISING OUT OF THE O RDER DATED 05/10/2012 IN ITA NO. 38/JODH/2012 FOR THE A.Y. 2008-09 HAS BEEN FILED BY THE ASSESSEE. 2 IN THIS MISCELLANEOUS APPLICATION THE ASSESSEE C ONTENDED AS UNDER:- THE HUMBLE PETITION OF THE ABOVE NAMED PETITION UN DER RULE 24 OF THE APPELLATE TRIBUNAL RULES 1963 FOR RECALLING THE EX PARTE ORDER AND RESTORATION OF APPEAL IS ON THE FOLLOWING FACTS AND GROUNDS:- 2 FACTS 1) THAT APPELLANT PREFERRED AN APPEAL BEFORE THE HON'B LE INCOME TAX APPELLATE TRIBUNAL JODHPUR AGAINST THE ORDER OF CI T(A) UDAIPUR DATED 25/10/2011. 2) THAT THE APPEAL WAS FIXED FOR HEARING ON 05/10/2012 BEFORE THE HON'BLE BENCH. THE APPELLANT WAS OUT OF TOWN THEREFORE HE HAD NO KNOWLEDGE OF FIXATION OF APPEAL AND DUE TO THIS FACT HE COULD NO T INFORM HIS A/R ABOUT THE HEARING OF APPEAL FIXED ON 11/10/2012 AND AS SU CH NEITHER ANY PERSON ON MY BEHALF COULD APPEAR NOR ANY APPLICATIO N FOR ADJOURNMENT COULD BE PRESENTED BEFORE THE HON'BLE BENCH. HAVING SUBMITTED THE FACTS OF THE CASE THE APPLICA NT STATES THAT GROUNDS FOR RESTORATION OF APPEAL. GROUNDS FOR SETTING ASIDE EXPARTE ORDER 1) THAT THE APPEAL WAS FIXED FOR HEARING ON 05/10/2012 BEFORE THE HON'BLE BENCH AS ON THAT DAY THE APPELLANT WAS OUT OF TOWN AND DUE TO THIS REASON HE COULD NOT INFORM OR COMMUNICATE HIS AUTHO RIZED REPRESENTATIVE IN RESPECT OF FIXATION OF APPEAL BEFORE THE HON'BLE BENCH AND AS SUCH THE DISMISSAL OF APPEAL IN DEFAULT IS A MISTAKE APPAREN T ON THE FACE OF RECORD 2) THAT THERE IS NO FAILURE ON THE PART OF THE APPELLA NT WHICH JUSTIFIES THE EXPARTE ORDER. 3) THAT THE REJECTION OF APPEAL BY APPLYING RATIO LAID DOWN IN 38 ITD 320 & 223 ITR 480 IS A MISTAKE APPARENT ON THE FACE OF RE CORD IN LIGHT OF FOLLOWING DECISIONS. A) THAT IN THE RECENT DECISION THE HON'BLE GUHATI HIGH COURT IN THE CASE OF RAJENDRA PRASHAD BORAH VS. ITAT [2008] REPORTED IN 302 ITR 243 HAS HELD THAT RULE 24 OF INCOME TAX (APPELLATE TRIB UNAL) RULE 1963 AS IT STANDS PER SE DOES NOT EMPOWER THE TRIBUNAL TO D ISMISS AN APPEAL FOR DEFAULT IN THE ABSENCE OF THE APPELLANT. IT WA S FURTHER HELD THAT THE TRIBUNALS RELIANCE ON THE DECISION OF THE TRIB UNAL DELHI RENDERED 3 IN CIT VS. MULTIPLAN INDIA (P) LTD. 38 ITD 320 IS A PPARENTLY MISPLACED IN TEETH OF THE DECISION OF THE APEX COURT IN CIT VS. CHENNIAPPA MUDALIAR 174 ITR 41 IT DIRECTED THE TRIBUNAL TO DECIDE THE A PPEALS ON MERITS IN ACCORDANCE WITH LAW. B) FURTHER HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF TRIBHUWAN KUMAR VS. CIT REPORTED IN 294 ITR 401 IMPLIEDLY OVERRULED THE DELHI BENCH DECISION IN THE CASE OF MULTIPLAN INDIA (P) LTD. RE PORTED IN 38 ITD 320. IN THE LIGHT OF ABOVE THE APPELLANT PRAYS THAT EXPA RTE ORDER PASSED ON 05/10/2012 MAY KINDLY BE RECALLED AND THE APPEAL BE DECIDED ON MERITS AFTER HEARING THE APPELLANT. 3. DURING THE COURSE OF HEARING LD. COUNSEL FOR TH E ASSESSEE REITERATED THE CONTENTS OF THE AFORESAID MISC. APPLICATION AND REQ UESTED TO RESTORE THE APPEAL AS THERE WAS REASONABLE CAUSE FOR NON-APPEARANCE ON 05 /10/2012. 4. LD. D.R. OPPOSED THE RECALLING OF THE ORDER. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND FOUND MERIT IN THE SUBMISSION OF LEARNED COUNSEL FOR THE ASSESSEE. IN THE PRESENT CASE IT IS AN ADMITTED FACT THAT THE APPEAL OF THE ASSESSEE WAS D ISMISSED EX-PARTE I.E. IN THE ABSENCE OF THE ASSESSEE. WE THEREFORE KEEPING IN VIEW THE PROVISO TO RULE 24 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES 1963 RECALL THE EX-PARTE ORDER DATED 05/10/2012 AND THE REGISTRY IS DIRECTED TO FI X THE CASE FOR HEARING ON 12/05/2014. 4 6. IN THE RESULT THE MISC. APPLICATION FILED BY TH E ASSESSEE IS ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON THIS 04-0 4-2014.) SD/- SD/- (HARI OM MARATHA) (N.K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 04 TH APRIL 2014 VR/- COPY TO:- 1.THE APPELLANT 2. THE RESPONDENT 3. THE LD. CIT 4. THE LD. CIT(A) 5. THE DR 6. THE GUARD FILE ASSISTANT REGISTRAR ITAT JODHPUR.