Baby Antony L/hr of Varkey Antony, Alappuzha v. ITO, Alappuzha

MA 42/COCH/2010 | 2003-2004
Pronouncement Date: 21-10-2010

Appeal Details

RSA Number 4221924 RSA 2010
Assessee PAN AESPA9628L
Bench Cochin
Appeal Number MA 42/COCH/2010
Duration Of Justice 3 month(s) 13 day(s)
Appellant Baby Antony L/hr of Varkey Antony, Alappuzha
Respondent ITO, Alappuzha
Appeal Type Miscellaneous Application
Pronouncement Date 21-10-2010
Appeal Filed By Assessee
Bench Allotted DB
Tribunal Order Date 21-10-2010
Assessment Year 2003-2004
Appeal Filed On 08-07-2010
Judgment Text
IN THE INCOME TAX APPELLAT E TRIBUNAL COCHIN BEN CH COCHIN BEFORE S/SHRI N.VIJAYAKUMARAN JM AND SANJAY AR ORA AM M.P. NO. 42/COCH/2010 (ASG. OUT OF I.T.A. NO. 806/COCH/2007) ASSESSMENT YEAR : 2003-04 SMT. BABY ANTONY REP BY L/HR. OF LATE SHRIVARKEY ANTONY EZHUPUNNA P.O. CHERTHALA ALLEPPEY. [PAN: AESPA 9628L] VS. THE INCOME TAX OFFICER WARD-3 ALLEPPEY. (ASSESSEE-APPLICANT) (REVENUE-RESPONDENT) ASSESSEE BY SHRI R.KRISHNAN CA-AR REVENUE BY DR. BABU JOSEPH SR. DR O R D E R PER SANJAY ARORA AM: THIS IS A MISCELLANEOUS PETITION BY THE ASSESSEE A RISING OUT OF THE ORDER BY THE TRIBUNAL DISMISSING ITS APPEAL FOR THE RELEVANT ASS ESSMENT YEAR IN LIMINE ON THE GROUND OF NON-PROSECUTION THEREOF. THE ASSESSEE-APPLICANT HA S NOW PREFERRED A MISCELLANEOUS APPLICATION STATING THAT THE NON-REPRESENTATION ON THE DATE OF HEARING I.E. 29.4.2010 WAS NOT ON ACCOUNT OF NON-REPRESENTATION PER SE BUT DUE TO THE REJECTION OF THE ADJOURNMENT APPLICATION DATED 27.4.2010 WHICH STATED OF HER AU THORISED REPRESENTATIVE (AR) BEING INDISPOSED WITH STOMACH AILMENT AND HAVING BEEN ADV ISED REST AS A REASON FOR THE SAME. 2. BEFORE US THE LD. AR ADVERTING TO THE APPLICAT ION SUBMITTED THAT IT WAS NOT ON ACCOUNT OF ANY PROFESSIONAL ENGAGEMENT BUT DUE TO H IS INDISPOSITION THAT THE ADJOURNMENT STOOD SOUGHT. AS SUCH THE SAME MAY BE ACCEPTED AN D THE APPEAL RESTORED FOR ADJUDICATION ON MERITS AND WHICH WOULD BE ALSO IN THE INTEREST OF JUSTICE. THE LD. DR ON THE OTHER HAND OBJECTED TO THE SAME STATING THAT A SET ASIDE FOR FRESH HEARING WOULD AMOUNT TO A REVIEW BY THE TRIBUNAL OF ITS ORDER AND WHICH IS NOT M.P. NO. 42/COCH./2010 2 PERMISSIBLE IN LAW. IN REJOINDER THE LD. AR CITE D THE DECISION IN THE CASE OF KHAITAN PAPER AND INDUSTRIES LTD. VS. CIT (2005) 273 ITR 234 (CAL.) STATING THAT WHEN ADEQUA TE AND REASONABLE GROUNDS FOR OMISSION TO APPEAR FOR H EARING ARE MADE OUT TO THE SATISFACTION OF THE TRIBUNAL IT IS INHERENTLY EMPO WERED TO RESTORE AND RE-HEAR THE APPEAL AND DISPOSE IT OF ON MERITS. AS SUCH THE SAME WOU LD NOT AMOUNT TO A REVIEW BUT ONLY AFFORDING OF AN OPPORTUNITY OF BEING HEARD TO THE A GGRIEVED PARTY. 3. WE HAVE HEARD THE PARTIES AND PERUSED THE MATER IAL ON RECORD. ADJOURNMENT IS NOT A MATTER OF RIGHT. HOWEVER THE ASSESSEE HAS SUPPOR TED ITS ADJOURNMENT APPLICATION I.E. OF BEING UNABLE TO ATTEND THE HEARING WITH A MEDICAL CERTIFICATE DATED 5.7.2010 STATING OF THE LD. AR BY NAME AS BEING UNDER TREATMENT FOR ACUTE GASTRITIS FROM 27.4.2010 TO 1.5.2010 AND ADVISED REST FOR THIS PERIOD. WE ARE THEREFORE OF THE VIEW THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FOR BEING NOT PRESENT EITHER IN PERSON OR THROUGH THE AUTHORISED REPRESENTATIVE ON THE DATE OF HEARING. A CCORDINGLY IN EXERCISE OF THE POWER AND THE PROCEDURE LAID DOWN UNDER RULE 24 OF THE AP PELLATE TRIBUNAL RULES 1963 WE RESTORE THE ASSESSEES APPEAL FOR HEARING ON MERITS . THE REGISTRY IS DIRECTED TO FIX THE HEARING OF THE APPEAL IN THE REGULAR COURSE. WE DEC IDE ACCORDINGLY. 4. IN THE RESULT THE ASSESSEES MISCELLANEOUS PETI TION IS ALLOWED. SD/- SD/- (N.VIJAYAKUMARAN) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: ERNAKULAM DATED: 21ST OCTOBER 2010 GJ COPY TO: 1. SMT. BABY ANTONY REP BY L/HR. OF LATE SHRI VARK EY ANTONY EZHUPUNNA P.O. CHERTHALA ALLEPPEY. 2. THE INCOME-TAX OFFICER WARD-3 ALLEPPEY. 3. THE COMMISSIONER OF INCOME-TAX (APPEALS)-IV KOC HI. 4. THE COMMISSIONER OF INCOME-TAX KOTTAYAM. 5. D.R. I.T.A.T. COCHIN BENCH COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT R EGISTRAR) M.P. NO. 42/COCH./2010 3