Shri Naverlal D.Desai, Surat v. The ACIT., Circle-3(1),, Surat

MA 31/AHD/2011 | misc
Pronouncement Date: 02-09-2011 | Result: Allowed

Appeal Details

RSA Number 3120524 RSA 2011
Assessee PAN ACAAD3882D
Bench Ahmedabad
Appeal Number MA 31/AHD/2011
Duration Of Justice 5 month(s) 25 day(s)
Appellant Shri Naverlal D.Desai, Surat
Respondent The ACIT., Circle-3(1),, Surat
Appeal Type Miscellaneous Application
Pronouncement Date 02-09-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 02-09-2011
Assessment Year misc
Appeal Filed On 08-03-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'C' BEFORE SHRI MUKUL SHRAWAT JUDICIAL MEMBER AND SHRI A N PAHUJA ACCOUNTANT MEMBER M A NO.31/AHD/2011 [IN IT(SS)A NO.58/AHD/2007] ( BLOCK PERIOD ENDING ON 29-10-1999) SHRI NATVERLAL D DESAI A-502 YOGI COMPLEX NEW RANDER ROAD SURAT V/S ASST. COMMISSIONER OF INCOME-TAX CIRCLE-3(1) SURAT PAN: ACAAD 3882 D [APPLICANT] [ORIGINAL APPELLANT] [RESPONDENT] [ORIGINAL RESPONDNET] APPLICANT BY :- SHRI HARDIK VORA AR RESPONDENT BY:- SHRI B L YADAV DR DATE OF HEARING:- 26-08-2011 DATE OF PRONOUNCEMENT:- 2 -09-2011 O R D E R A N PAHUJA: THIS MISC. APPLICATION[MA] HAS BEEN FILED ON 8.3. 2011 AGAINST AN ORDER DATED 01-06-2010 OF THE TRIBUNAL I N IT(SS)A.NO.58/AHD/2007 FOR THE BLOCK PERIOD ENDING 29.10.1999 DISMISSING THE APPEAL OF THE ASSESSEE RELYING UPON THE DECISION OF DELHI BENCH OF THE TRIBUNAL IN THE CASE OF MULTIPLA N INDIA (P) LTD. VS CIT 38 ITD 320 (DEL). 2. IN THEIR MISCELLANEOUS APPLICATION THE ASSESSE E SUBMITTED THAT THE THROUGH OVER SIGHT IN NOTING T HE DATE OF HEARING THE CA COULD NOT PUT IN APPEARANCE ON 01.06.2010.T HE ASSESSEE WAS INTERESTED IN PURSUING THE APPEAL AS IT CAN BE EVIDENT FROM THE FACT THAT HEARING WAS EARLIER FIXED ON 28.05.2007 W HEN ASSESSEE'S COUNSEL ASKED FOR ADJOURNMENT. MOREOVER THE VALIDI TY OF ASSESSMENT U/'S 158BD WAS CHALLENGED WHICH IS A COVERED MATTE R IN FAVOUR OF ASSESSEE. ACCORDINGLY THE ASSESSEE REQUESTED TO R ECALL THE ORDER DATED 01.06.2010. 2 MA NO.31/AHD/2011 3. THE LD. AR ON BEHALF OF THE ASSESSEE MERELY RE ITERATED WHAT IS MENTIONED IN THE MA WHILE THE LD. DR OPPOSED THE M A REASONS BEING GENERAL IN NATURE. 4. AFTER HEARING THE PARTIES AND CONSIDERING THE FACTS OF THE CASE WE ARE OF THE OPINION THAT THE DISPOSAL OF T HE APPEAL WAS IN VIOLATION OF THE PRINCIPLE OF ' AUDI ALTERAM PARTEM '. THE PRAYER IN SUCH A SITUATION FOR REHEARING THE APPEAL IS NOT A PRAYER TO REVIEW ITS EARLIER DECISION RATHER IT IS TO SET ASIDE AN EX P ARTE ORDER AND FOR AFFORDING AN OPPORTUNITY OF BEING HEARD. THIS POWER IS INHERENT IN THE TRIBUNAL. POWER TO RECALL AN ORDER IS PRESCRIBED IN TERMS OF R. 24 OF THE ITAT RULES 1963 AND THAT TOO ONLY IN CASES WH ERE THE ASSESSEE SHOWS THAT IT HAD A REASONABLE CAUSE FOR BEING ABSE NT AT A TIME WHEN THE APPEAL WAS TAKEN UP AND WAS DECIDED EX PAR TE. IN THIS CONNECTION HONBLE GAUHATI HIGH COURT IN THE CASE OF RAJENDRA PRASAD BORAH VS ITAT AND OTHERS 302 ITR 243 RELYIN G UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CI T VS S.CHENNIAPPA MUDALIAR 74 ITR 41 AND THEIR OWN DECIS ION IN THE ASSAM TRIBUNE VS. CIT 285 ITR 452 HELD THAT APART FROM THE FACT THAT SECTION 254( EARLIER SECTION 33)OF THE ACT MAKES IT INCUMBENT ON THE LEARNED TRIBUNAL TO DISPOSE OF THE APPEALS ON MERITS AS HAS BEEN ENUNCIATED BY THE APE X COURT IN CIT VS S.CHENNIAPPA MUDALIAR 74 ITR 41 RULE 24 AS IT S TANDS PER SE DOES NOT EMPOWER THE LEARNED TRIBUNAL TO DISMISS AN APPEAL FOR DEFAULT IN THE ABSENCE OF THE APPELLANT. THE LEARNE D TRIBUNALS RELIANCE ON THE DECISION OF THE INCOME-TAX APPELLAT E TRIBUNAL DELHI RENDERED IN CIT VS.MULTIPLAN INDIA(P) LTD. 38 ITD 3 20(DELHI) IS APPARENTLY MISPLACED IN THE TEETH OF THE DECISION O F THE APEX COURT IN CIT VS S.CHENNIAPPA MUDALIAR 74 ITR 41. 5. IN THE LIGHT OF AFORESAID DECISION OF HONBLE GAUHATI HIGH COURT AND REASONS GIVEN BY THE APPLICANT WE RECALL THE IMPUGNED ORDER DATED ORDER DATED 1.6.2010 OF THE ITAT AND DIRECT THE REGISTRY TO FIX THE MATTER FOR HEARING ON 23.11.2011. BOTH THE PART IES WERE INFORMED IN THE OPEN COURT ACCORDINGLY. 3 MA NO.31/AHD/2011 6 IN THE RESULT MISCELLANEOUS APPLICATION IS ALL OWED ORDER PRONOUNCED IN THE COURT TODAY ON 2-09-2011 SD/- SD/- ( MUKUL SHRAWAT ) JUDICIAL MEMBER ( A N PAHUJA ) ACCOUNTANT MEMBER DATED : 2-09-2011 COPY OF THE ORDER FORWARDED TO: 1. SHRI NATVERLAL D DESAI A-502 YOGI COMPLEX NEW RANDER ROAD SURAT 2. THE ASST. COMMISSIONER OF INCOME-TAX CIRCLE-3(1 ) SURAT 3. CIT CONCERNED 4. CIT(A)-II SURAT 5. DR ITAT AHMEDABAD BENCH-C AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT AHMEDABAD