Smt. Zarnaben V. Sheth,, RAJKOT-GUJARAT v. The Income Tax Officer, Ward-5(1),, RAJKOT-GUJARAT

MA 3/RJT/2012 | 2004-2005
Pronouncement Date: 31-07-2012 | Result: Allowed

Appeal Details

RSA Number 324924 RSA 2012
Bench Rajkot
Appeal Number MA 3/RJT/2012
Duration Of Justice 5 month(s) 24 day(s)
Appellant Smt. Zarnaben V. Sheth,, RAJKOT-GUJARAT
Respondent The Income Tax Officer, Ward-5(1),, RAJKOT-GUJARAT
Appeal Type Miscellaneous Application
Pronouncement Date 31-07-2012
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 31-07-2012
Date Of Final Hearing 08-06-2012
Next Hearing Date 08-06-2012
Assessment Year 2004-2005
Appeal Filed On 06-02-2012
Judgment Text
: : IN THE INCOME TAX APPELLATE TRIBULAL: RAJKOT BENCH: RAJKOT . .. . . . . . . .. . . . . . % % % % BEFORE SHRI T. K. SHARMA JM AND SHRI D. K. SR IVASTAVA AM MA NO.3/RJT/2012 ARISING OUT OF ITA NO.115/RJT/2011 / ASSESSMENT YEAR 2004-5 SMT.ZERNABEN VIBHASHBHAI SHETH V. INCOME TAX OF FICER SANJAY & CO. PREMJEES FIRST FLOOR WARD NO. 5(1) RAJKOT RAJPUT PARA MAIN ROAD RAJKOT PAN: AKOPSO289D APPLICANT BY: WRITTEN SUBMISSIONS FILED DEPARTMENT BY: SHRI M K SINGH DATE OF HEARING: 08.06.2012 DATE OF PRONOUNCEMENT: 31.07.2012 / // / ORDER . .. . . . . . /D. K. SRIVASTAVA: THE MA FILED BY THE ASSESSEE SEEKS RESTORATION OF APPEAL BEARING ITA NO. 115/RJT/2011 FILED BY HER WHICH WAS EARLIER DISMISSED IN-LIMINE BY THIS TRIBUNAL ON 4.11.2011FO R WANT OF PROSECUTION. THE MA FILED BY THE ASSESSEE READS AS UNDER: 1. THE ABOVE APPEAL WAS DISMISSED BY THE HONBLE TRIBU NAL VIDE ITS ORDER DATED 4 TH NOVEMBER 2011 FOR NON-PROSECUTION FOLLOWING THE JUDGMENT IN THE CASE OF MULTIPLAN INDIA LIMITED REP ORTED IN 38 ITD 320 AND THE JUDGMENT OF THE HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF LATE TUKOJIRAO HOLKAR REPORTED IN 223 ITR 480 (M P). 2. THE APPELLANT ABOVE NAMED BEG TO SUBMIT THIS APPLICATION FOR RESTORATION OF THE ABOVE APPEAL UNDER RULE 24 OF TH E INCOME-TAX APPELLATE TRIBUNAL RULES 1963. 3. THE APPELLANT SUBMITS THAT SHE WAS PREVENTED B Y REASONABLE CAUSE TO MAKE APPEARANCE BEFORE THE HONBLE TRIBUNAL THRO UGH HER AUTHORIZED REPRESENTATIVE ON THE DATE OF HEARING AS THE INTIM ATION ABOUT THE DATE OF NEXT HEARING WAS NOT RECEIVED BY THE APPELLANT. 4. THE HONBLE TRIBUNAL HAS MENTIONED IN THE ORDE R THAT THE HEARING WAS FIXED FOR 30-8-2011 AND THE APPELLANT HAD SOUG HT ADJOURNMENT OF HEARING VIDE APPLICATION DATED 29-8-2011 FILED ON 30-8-2011 AND THE MATTER WAS ADJOURNED TO 01-11-2011. HOWEVER THE IN TIMATION ABOUT THIS NEXT DATE OF HEARING WAS NOT RECEIVED BY THE APPELL ANT AND HENCE THERE 2 ITA NO.39/RJT/2012 CO NO.15/RJT/2012 WAS NO APPEARANCE BY THE A.R. OF THE APPELLANT ON T HE 1 ST NOVEMBER 2011. 5. THE INTIMATION ABOUT THIS NEXT DATE OF HEARING WAS NOT RECEIVED BY THE A.R. OF THE APPELLANT ALTHOUGH HIS ADDRESS & T ELEPHONE NOS. WERE GIVEN AGAINST COL. NO. 10 OF THE APPEAL MEMO I.E. F ORM NO. 35 OF THE INCOME-TAX RULES FILED IN THIS CASE. 6 SINCE THE APPELLANT HAD FILED THE STATEMENT OF FACTS AND THE GROUNDS OF APPEAL ALONG WITH THE COPIES OF THE ORDERS OF TH E LOWER AUTHORITIES AND PAID FEES OF RS._ AND HAD ALSO AUTHORIZED THE COUNS EL FOR REPRESENTING HER CASE THE APPELLANT WOULD LIKE TO SUBMIT RELYI NG ON THE DECISION OF THE HON'BLE GAUHATI HIGH COURT IN THE CASE OF RAJEN DRA PRASAD BORAH VS. ITAT REPORTED IN 302 ITR 243 (GAUHATI) THAT TH E TRIBUNAL SHOULD HAVE DECIDED THE APPEAL ON MERITS. 7. UNDER THESE CIRCUMSTANCES IT IS RESPECTFULLY SUBMITTED THAT THE HON'BLE TRIBUNAL MAY BE PLEASED TO RESTORE THE ABOV E APPEAL UNDER RULE 24 OF THE INCOME-TAX APPELLATE TRIBUNAL RULES 1963 AND OBLIGE. 8. ORIGINAL CHALLAN FOR RS. 50/- DATED 02 FEBRUARY 2012 BEING MISCELLANEOUS APPLICATION FEES IS ENCLOSED HEREWIT H. 2. THE ASSESSEE IS PROPRIETOR OF M/S D. M. JEWELLER S. AGGRIEVED BY THE ORDER PASSED BY THE CIT(A) THE ASSESSEE FILED APPEAL BEA RING ITA NO.115/RJT./2011 BEFORE THIS TRIBUNAL. SHE HAD ALSO FILED POWER OF A TTORNEY AUTHORIZING SHRI SANJAY MEHTA OF MEHTA AND CO. TAX-CONSULTANT TO REPRESEN T HER CASE BEFORE THIS TRIBUNAL. THE SAID POWER OF ATTORNEY IS DATED 1.4.2011 AND IS AVAILABLE ON RECORD. BASED ON THE AFORESAID AUTHORITY SHRI SANJAY MEHTA FILED AP PEAL DULY SIGNED BY THE ASSESSEE BEFORE THIS TRIBUNAL VIDE HIS LETTER DATED 4/6.4.20 11. NOTICE OF HEARING FIXING THE APPEAL FOR HEARING ON 30.8.2011 WAS ISSUED BY THE R EGISTRY PURSUANT TO WHICH SHRI SANJAY MEHTA FILED AN APPLICATION DATED 29.8.2011 ( FILED ON 30.8.2011) FOR ADJOURNMENT. HEARING WAS ADJOURNED TO 1.11.2011 WH ICH WAS DULY NOTED BY SHRI SANJAY MEHTA. ON 1.11.2011 NEITHER SHRI SANJAY MEH TA NOR ANYBODY ELSE ON BEHALF OF THE ASSESSEE WAS PRESENT NOR WAS ANY APPLICATION FOR ADJOURNMENT RECEIVED. SINCE THE ASSESSEE HERSELF HAD AUTHORIZED SHRI SANJ AY MEHTA TO REPRESENT HER CASE BEFORE THIS TRIBUNAL THE ACTIONS OF SHRI SANJAY ME HTA WOULD BE TREATED AS THOSE OF THE ASSESSEE HERSELF. THE ASSESSEE CANNOT BE HEARD AT THIS STAGE TO SAY THAT SHE HAD NOT RECEIVED THE NOTICE OR INTIMATION ABOUT THE DATE OF HEARING FROM THIS TRIBUNAL 3 ITA NO.39/RJT/2012 CO NO.15/RJT/2012 IN VIEW OF THE FACT THAT THE DATE OF HEARING WAS DU LY NOTED BY SHRI SANJAY MEHTA AS AN AUTHORISED REPRESENTATIVE OF THE ASSESSEE. THE A FORESAID SUBMISSIONS MADE BY HER ARE THUS COMPLETELY INCORRECT BOTH FACTUALLY AS WELL AS LEGALLY. THEY ARE THEREFORE REJECTED. 3. HOWEVER THE ALTERNATIVE SUBMISSION OF THE ASSES SEE THAT THE ORDER PASSED BY THIS TRIBUNAL ON 4.11.2011 DISMISSING THE APPEAL FILED BY THE ASSESSEE ON ACCOUNT OF HER DEFAULT IN ENTERING UPON APPEARANCE ON THE DATE OF HEARING WITHOUT DISPOSING OFF THE APPEAL ON MERITS AS REQUIRED IN T ERMS OF THE JUDGMENT OF THE HONBLE SUPREME COURT IN CIT V. S. CHENNIAPPA MUDAL IAR 74 ITR 41 (SC) AND HENCE SHOULD BE RECALLED DESERVES SERIOUS CONSIDERA TION. IT IS TRUE THAT THE APPEAL FILED BY THE ASSESSEE HAS BEEN DISMISSED BY THIS TR IBUNAL MERELY ON ACCOUNT OF DEFAULT ON THE PART OF THE ASSESSEE IN ENTERING APP EARANCE ON THE DATE OF HEARING AND NOT ON MERITS. IT HAS BEEN HELD BY THE HONBLE SUPREME COURT IN CIT V. S. CHENNIAPPA MUDALIAR 74 ITR 41 (SC) THAT THIS TRIBU NAL HAS TO DISPOSE OF THE APPEAL ON THE MERITS AND THAT IT CANNOT SHORT-CIRCU IT THE SAME BY DISMISSING IT FOR DEFAULT IN APPEARANCE. AT PAGE 48 OF THE SAID REPOR TS THE HONBLE SUPREME COURT HAS OBSERVED AS UNDER: THUS LOOKING AT THE SUBSTANTIVE PROVISIONS OF THE ACT THERE IS NO ESCAPE FROM THE CONCLUSION THAT UNDER SECTION 33(4) THE AP PELLATE TRIBUNAL HAS TO DISPOSE OF THE APPEAL ON THE MERITS AND CANNOT SHOR T-CIRCUIT THE SAME BY DISMISSING IT FOR DEFAULT OF APPEARANCE. 4. TAKING NOTE OF THE AFORESAID JUDGMENT THE HONB LE GAUHATI HIGH COURT HAS HELD IN RAJENDRA PRASAD BORAH V. INCOME TAX APPELLA TE TRIBUNAL AND OTHERS 302 ITR 243 ( GAUHATI ) AS UNDER: AFTER HEARING LEARNED COUNSEL FOR THE PARTIES AND ON A PERUSAL OF THE PROVISIONS OF LAW REFERRED TO HEREINABOVE IT IS MO RE THAN APPARENT THAT THE COURSE ADOPTED BY THE LEARNED TRIBUNAL IN DISPOSING OF THE ASSESSEES APPEALS IN THE MANNER AS DELINEATED IN THE IMPUGNED ORDER CANNOT BE SUSTAINED. APART FROM THE FACT THAT S. 254 (EARLIER S. 33) OF THE ACT MAKES IT INCUMBENT ON THE LEARNED TRIBUNAL TO DISPOSE OF THE APPEALS ON MERITS AS HAS 4 ITA NO.39/RJT/2012 CO NO.15/RJT/2012 BEEN ENUNCIATED BY THE APEX COURT IN CIT V. S. CHEN NIAPPA MUDALIAR (SUPRA) R. 24 AS IT STANDS PER SE DOES NOT EMPOWE R THE LEARNED TRIBUNAL TO DISMISS AN APPEAL FOR DEFAULT IN THE ABSENCE OF THE APPELLANT. THE LEARNED TRIBUNALS RELIANCE ON THE DECISION OF THE TRIBUNAL DELHI RENDERED IN CIT VS. MULTIPLAN INDIA (P) LTD. (SUPRA) IS APPARENTLY MIS PLACED IN THE TEETH OF THE DECISION OF THE APEX COURT IN CIT VS. S. CHENNIAPPA MUDALIAR (SUPRA). 5. SIMILAR VIEW AS AFORESAID HAS BEEN TAKEN BY THE HONBLE RAJASTHAN HIGH COURT IN TRIBHUVAN KUMAR V. CIT 294 ITR 401 (RAJ.) AND HONBLE MP HIGH COURT IN ANIL KUMAR AGRAHARI V. CIT 323 ITR 260 (MP). LAW D ECLARED BY THE SUPREME COURT IS BINDING ON US. THE APPEAL FILED BY THE ASSESSEE WAS REQUIRED BY LAW TO BE DISPOSED OFF ON MERITS WHICH HAS NOT BEEN DONE. IN THIS VIEW OF THE MATTER WE CONSIDER IT APPROPRIATE TO RECALL THE ORDER PASSED BY THIS TRIBUNAL ON 4.11.2011 BY WHICH APPEAL BEARING ITA NO.115/RJT./2011 FILED BY THE ASSESSEE HAS BEEN DISMISSED IN LIMINE ON ACCOUNT OF DEFAULT ON THE PA RT OF THE ASSESSEE IN ENTERING APPEARANCE ON THE DATE OF HEARING. WE ORDER ACCORDI NGLY. RESULTANTLY THE APPEAL FILED BY THE ASSESSEE STANDS RESTORED FOR DISPOSAL ON MERITS. REGISTRY IS DIRECTED TO FIX AND LIST THE APPEAL FOR HEARING ON 29.8.2012. T HE MA FILED BY THE ASSESSEE STANDS ALLOWED. * 31 -07-2012 * ORDER PRONOUNCED ON 31 -07-2012 SD SD ( .. / T. K. SHARMA) ( .. / D. K. SRIVASTAVA) /JUDICIAL MEMBER / ACCOUNTANT MEMBER /RAJKOT: 31-07-2012. SRL/- * ** * /0 /0 /0 /0 10 10 10 10 / COPY OF ORDER FORWARDED TO:- 1. 4 / APPELLANT-. 2. /64 / RESPONDENT-. 3. : / CONCERNED CIT 4. :- / CIT (A). 5. 0 / / DR ITAT RAJKOT 6. / GUARD FILE. / BY ORDER TRUE COPY SENIOR PRIVATE SECRETARY ITAT RAJKOT BE NCH