M/s. Pooja Paper Craft, Ahmedabad v. The Dy.CIT.,Circle-10,, Ahmedabad

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'B' [BEFORE S/SHRI H L KARWA AND A N PAHUJA] MISCELLANEOUS APPLICATION NO.44/AHD/2009 [ARISING OUT OF ITA NO.2144/AHD/2008] (ASSESSMENT YEAR:- 2004-05) POOJA PAPER CRAFT 15 SWASTIK AVENUE NAVRANGPURA AHMEDABAD PAN: AADFP 5875 B V/S THE DEPUTY COMMISSIONER OF INCOME-TAX CIRCLE-10 1 ST FLOOR NARAYAN CHAMBERS ASHRAM ROAD AHMEDABAD (APPLICANT) [ORIGINAL RESPONDENT] (RESPONDENT) [ORIGINAL APPELLANT] APPLICANT BY :- SHRI S N SOPARKAR AR RESPONDENT BY:- SMT. NEETA SHAH DR O R D E R A N PAHUJA: THIS IS A MISCELLANEOUS APPLICATION FILED BY THE - ASSESSEE AGAINST AN ORDER DATED 24-10-2008 PASSED B Y THE ITAT IN ITA NO.2144/AHD/2008. 2. IN THIS MISCELLANEOUS APPLICATION THE AS SESSEE REQUESTED TO RECALL THE AFORESAID ORDER DATED 24-10-2008 ON THE GROUND THAT THE ACCOUNTANT OF THE ASSESSEE DID NOT PROVIDE A COPY O F NOTICE OF HEARING TO THE AUTHORIZED REPRESENTATIVE OF THE ASS ESSEE AND THEREFORE THE AUTHORIZED REPRESENTATIVE COULD NOT REMAIN PRESENT AT THE TIME OF HEARING ON 07-08-2008.AN AFFIDAVIT D ATED 16.7.2009 OF THE CONCERNED ACCOUNTANT SHRI SATISH RAMANLAL SHAH AVERRING THAT DUE TO ABSENCE FROM OFFICE ON ACCOUNT OF ILL HEALTH HE FORGOT TO GIVE NOTICE OF HEARING TO THE CA HAS ALSO BEEN FILED. T HE LEARNED AR ON BEHALF OF THE ASSESSEE CONTENDED THAT EX-PARTE DECI SION OF THE APPEAL WOULD CAUSE GRAVE AND IRREPARABLE INJURY TO THE ASSESSEE AND THEREFORE THE ORDER DATED 24-10-2008 OF THE T RIBUNAL MAY BE RECALLED FOR REHEARING. ON THE OTHER HAND THE LD. DR WHILE RELYING MA NO.44/AHD/2009 2 UPON THE DECISION IN THE CASE OF CIT VS. K.L.BHATIA 182 ITR 361(DEL.) CONTENDED THAT DECISION OF THE ITAT IS RE NDERED ON MERITS AND IF RECALLED WOULD AMOUNT TO REVIEW OF THE SAID ORDER. 3. AFTER HEARING THE PARTIES AND CONSIDERING THE F ACTS OF THE CASE AS ALSO UNCONTROVERTED AVERMENTS OF THE ACCOUNTANT IN THE AFFIDAVIT OF THE ACCOUNTANT WE ARE OF THE OPINION THAT THERE WAS A REASONABLE CAUSE FOR ASSESSEE'S FAILURE TO APPEAR BEFORE THE I TAT ON THE DATE OF HEARING. APPARENTLY THE DISPOSAL OF THE 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 DE CISION AS CONTENDED BY THE LD. DR; RATHER IT IS TO SET ASIDE AN EX PARTE 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 196 3 AND THAT TOO ONLY IN CASES WHERE THE ASSESSEE SHOWS THAT IT HAD A REASONABLE C AUSE FOR BEING ABSENT AT A TIME WHEN THE APPEAL WAS TAKEN UP AND WAS DECIDED E X PARTE. THE DECISION IN THE CASE OF K.L.BHATIA(SUPRA) RELIED ON BY THE LD. DR WAS RENDERED ON DIFFERENT FACTS AND IS NOT APPLICABLE TO THE FACTS OF THE CA SE UNDER CONSIDERATION. 4. IN VIEW OF THE FOREGOING WE RECALL THE ORDER DATED 24.10.2008 OF THE TRIBUNAL AND DIRECT THE REGISTRY TO FIX THE MAT TER IN REGULAR COURSE. 5. IN THE RESULT MA IS ALLOWED . ORDER PRONOUNCED IN OPEN COURT ON 29TH JANUARY 2 010. SD/- SD/- (H L KARWA) JUDICIAL MEMBER (A N PAHUJA) ACCOUNTANT MEMBER DATE : 29-1-2010 MA NO.44/AHD/2009 3 COPY OF THE ORDER FORWARDED TO : 1. POOJA PAPER CRAFT 15 SWASTIK AVENUE NAVRANGPU RA AHMEDABAD 2. THE DEPUTY COMMISSIONER OF INCOME-TAX CIRCLE-10 1 ST FLOOR NARAYAN CHAMBERS ASHRAM ROAD AHMEDABAD 3. THE CIT CONCERNED 4. THE CIT(A)-XVI AHMEDABAD 5. THE DR ITAT AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR/ ASSISTANT REGISTRAR ITAT AHMEDABAD