M/s. Chaudhary Enterprises,, Bathinda v. The Income tax Officer, WARD 1(2),, Bathinda

MA 46/ASR/2017 | 2008-2009
Pronouncement Date: 30-11-2017 | Result: Allowed

Appeal Details

RSA Number 4620924 RSA 2017
Bench Amritsar
Appeal Number MA 46/ASR/2017
Duration Of Justice 6 month(s)
Appellant M/s. Chaudhary Enterprises,, Bathinda
Respondent The Income tax Officer, WARD 1(2),, Bathinda
Appeal Type Miscellaneous Application
Pronouncement Date 30-11-2017
Appeal Filed By Assessee
Tags No record found
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 30-11-2017
Last Hearing Date 03-11-2017
First Hearing Date 03-11-2017
Assessment Year 2008-2009
Appeal Filed On 30-05-2017
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH.T.S. KAPOOR ACCOUNTANT MEMBER AND SH.N.K.CHOUDHRY JUDICIAL MEMBER M. A. NO.46(ASR)/2017 (ARISING OUT OF I.T.A NO.578(ASR)/2013) ASSESSMENT YEAR: 2008-09 M/S. CHOUDHARY ENTERPRISES. GANPATI AGRO COMPLEX MALOUT ROAD BATHINDA. PAN:AAEFC-2374B VS. INCOME TAX OFFICER WARD-1(2) BATHINDA. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. ASHWANI KALIA (LD. C.A.) RESPONDENT BY: SH. S.S. KANWAL (LD. DR) DATE OF HEARING: 03.11.2017 DATE OF PRONOU NCEMENT:30.11.2017 ORDER PER N. K. CHOUDHRY: THE INSTANT MISCELLANEOUS APPLICATION HAS BEEN FILED BY T HE ASSESSEE FOR RECALLING OF THE EX-PARTE ORDER DATED 18.04.2017 PASSED BY THE (SMC) BENCH OF ITAT AT AMRITSAR IN ITA NO.578 (ASR)/2013 FOR ASST. YEAR:2008-09. IN THE INSTANT CASE THE APPEAL WAS DISMISSED ON NON PRO SECUTION IN LIMINE DUE TO THE NON REPRESENTATION ON BEHALF OF THE ASSESSEE. IT WAS OBSERVED BY THE HONBLE JUDGE OF SMC BENCH THAT THE APPEAL UNDER CONSIDERATION FILED ON 16.09.2013 WAS DISMISSED FO R NON- PROSECUTION BY THE ASSESSEE ON DATED 1 ST APRIL 2014 AND THEREAFTER THE SAID ORDER WAS RECALLED VIDE ORDER DATED 20.09.20 16. ON THE DATE OF HEARING ON 17 TH APRIL 2017 THE OFFICE PEON/ASSISTANT WAS PRESENT IN COURT BUT WITHOUT ANY AUTHORIZATION AND IDENTIFICATI ON STATED THAT HE WAS NOT AWARE AS TO WHY THE ADJOURNMENT HAD BEEN MOV ED. IT WAS MA NO.46(ASR)/2017 ARISING OUT OF ITA NO.578(ASR)/2013 ASST. YEAR:2008-09 2 FURTHER OBSERVED THAT IN THE PECULIAR FACTS WHERE DESPI TE FILING IN APPEAL IN SEP. 2013 IF TILL DATE NECESSARY PAPERS HAV E NOT BEEN MADE AVAILABLE TO THE COUNSEL IT CAN BE SAFELY PRESUMED THAT THE ASSESSEE MAY NOT BE SERIOUS IN PURSUING THE APPEAL FILED. IN VI EW THEREOF THE ADJOURNMENT APPLICATION WAS REJECTED AND THE APPEAL O F THE ASSESSEE WAS DISMISSED IN LIMINE. HOWEVER FROM THE ORDER IT REF LECTS THAT THE ASSESSEE IF SO DESIRES SHALL BE FREE TO MOVE THIS TRIBUNAL PRAYING FOR A RECALL OF THIS ORDER EXPLAINING THE REASONS WHY OVER T HE YEARS RELEVANT PAPERS WERE STILL NOT READILY AVAILABLE TO ITS COUNSEL AND IF THE BENCH IS SO SATISFIED ABOUT THE REASONS ETC. IT MAY RECALL THE ABOV E ORDER. 2. FEELING AGGRIEVED AGAINST THE SAID ORDER DATED 1 8.04.2017 THE ASSESSEE PREFERRED THE INSTANT APPEAL U/S 24 OF THE ITAT RULES 1963. IN SUPPORT OF ITS CASE IT WAS SUBMITTED BY THE LD. AR THAT IN THE INSTANT CASE THE NOTICE OF FIXING OF APPEAL WAS RECEIVED BY THE ASSESSEE AND THE SAME WAS E-MAILED TO ITS COUNSEL SH. ASHWAN I KALIA WHO IS STATIONED AT AMRITSAR FOR TAKING NECESSARY ACTION AND SUBSEQUENTLY THE LD. COUNSEL SH. ASHWANI KALIA INFORME D THE ASSESSEE THAT AS PER THE NOTICE THE APPEAL IS FIXED FOR HEARIN G BEFORE THE DIVISION BENCH BUT THE DIVISION BENCH SHALL NOT BE FU NCTIONING FROM APRIL 2017 TO 25 TH APRIL 2017 ON ACCOUNT OF LEAVE OF ONE OF THE HONBLE MEMBER AND IT WAS FURTHER INFORMED TO THE ASSES SEE THAT THE APPEAL SHALL AUTOMATICALLY GET ADJOURNED. SUBSEQUENTLY CLOSE TO THE DATE OF HEARING IT WAS INFO RMED BY THE LD. COUNSEL THAT THE APPEAL IS TO BE TAKEN UP BY THE SMC BENCH AND ASKED THE ASSESSEE TO SEND LOCAL COUNSEL IMMEDIATELY TO AMIRTSAR FOR THE PREPARATION OF APPEAL AND THE PAPER BOOK AN D TO FURNISH THE REQUIRED DOCUMENTS. HOWEVER THE LD. COUNSEL AT BATHI NDA WAS NOT IN POSITION TO COME TO AMRITSAR AT SUCH SHORT NOTICE DUE TO CERTAIN FAMILY MATTERS AND ASKED THE ASSESSEE TO REQUEST THE COUNSEL AT AM RITSAR TO MA NO.46(ASR)/2017 ARISING OUT OF ITA NO.578(ASR)/2013 ASST. YEAR:2008-09 3 SEEK ADJOURNMENT WHICH WAS DULY INFORMED TO THE LD. CO UNSEL AT AMRITSAR TO APPLY FOR ADJOURNMENT ON THE GROUNDS DETA ILED ABOVE. HOWEVER THE REQUEST FOR ADJOURNMENT WAS REJECTED BY TH E HONBLE COURT VIDE ORDER DATED 18.04. 2017. FURTHER IT WAS SUBMITTED BY THE LD. AR ON BEHALF OF THE ASSESSEE THAT SINCE THE ASSESSEE INFORMED QUITE LATE THAT TH E APPEAL SHALL BE TAKEN UP BEFORE THE SMC COURT AND THE TIME WAS TOO SHORT AND LOCAL COUNSEL WAS UNABLE TO GO TO AMRITSAR IN SUCH A SH ORT PERIOD DUE TO CERTAIN FAMILY MATTER THEREFORE ON THE AFOR ESAID REASONS EX- PARTE ORDER DATED 18.04.2017 MAY BE RECALLED IN THE INTEREST OF JUSTICE BY GIVING OPPORTUNITY TO THE ASSESSEE TO REPRESENT ITS CASE . FURTHER WITH REGARD TO OBSERVATION OF THE BENCH OF TH E SMC JUDGE THAT THE APPEAL OF THE ASSESSEE CASE WAS EARLIER ALSO DISMISSED EX-PARTE FOR WANT OF PROSECUTION. IT IS TO SUBMIT THAT THE COUNSE L THROUGH REGISTERED POST ON 28.03.2014 SOUGHT ADJOURNM ENT OF THE CASE FIXED FOR 1.4.2014 BUT IT SEEMS THAT ADJOURNMENT REQUEST GOT OVER SIGHT AND THE CASE WAS DECIDED EX-PARTE WHICH WAS S UBSEQUENTLY RECALLED BY THE HONBLE BENCH ON SATISFYING ABOUT NON-AP PEARANCE OF THE ASSESSEE. 3. ON THE CONTRARY THE LD. DR RELIED UPON THE ORDER PASSED BY THE SMC BENCH (COURT) AND SUBMITTED THAT THE ASSESSEE DOES NOT DESERVE ANY LENIENCY BECAUSE IN THE PREVIOUS OCCASION ALSO IT MADE A DEFAULT AND APPEAL WAS DISMISSED FOR WANT OF PROSECUTION. 4. WE HAVE GONE THROUGH WITH THE FACTS AND CIRCUMSTA NCES OF THE CASE. AS WE CONSIDERED THE SUBMISSIONS OF THE LD. AR THAT THE DIVISION BENCH SHALL NOT BE FUNCTIONING FROM 1 ST APRIL 2017 TO 25 TH APRIL 2017 BECAUSE ONE OF THE HONBLE MEMBER WAS ON LONG LEAVE HO WEVER MA NO.46(ASR)/2017 ARISING OUT OF ITA NO.578(ASR)/2013 ASST. YEAR:2008-09 4 INFORMATION HAD BEEN RECEIVED QUITE LATE THAT THE AP PEAL SHALL BE TAKEN UP BEFORE THE SMC BENCH AND TIME WAS TOO SHORT AND LOCA L COUNSEL WAS UNABLE TO COME AT AMRITSAR IN A SUCH SHORT PERIOD DU E TO CERTAIN FAMILY MATTERS. WE FOUND REASONABILITY IN THE REASONI NG OF THE LD. AR SH. ASHWANI KALIA AND CONSIDERING THE FACTS THAT THE AP PEAL HAS NOT BEEN DECIDED ON MERITS BUT DISMISSED IN LIMINE AND SPECI FICALLY THE LIBERTY WAS GRANTED TO MOVE APPLICATION FOR RECALLING OF THE ORDER UNDER CHALLENGE EXPLAINING THE REASONS WHY OVER THE YEARS REL EVANT PAPERS WERE STILL NOT READILY AVAILABLE TO ITS COUNSEL. AS WE R EALIZED THAT CASE PERTAINS TO THE DISTRICT OF BATHINDA AND AS IT HAS INFOR MED BY LD. AR THAT LOCAL COUNSEL HAS TO ASSIST THE LD. AR AT AMRITSAR T HEREFORE THE CASE WAS NOT PROSECUTED. CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES OF THE INSTANT CASE AS WELL AS TO FOLLOW THE RULE OF AUDI ALTERAM PARTEM WE FEEL IT APPROPRIATE TO RECALL THE ORDER DATED 18.04.2017 PASSE D BY THE SMC BENCH. HENCE THE SAME IS RECALLED BUT SUBJECT TO THE CONDIT ION THAT THE ASSESSEE SHALL SUBMIT RELEVANT DOCUMENTS WHATEVER AT ON E INSTANCE WHICH INTENDS TO RELY IN SUPPORT OF ITS CASE WITH IN 15 DAYS OF THIS ORDER AND THEREAFTER THE ASSESSEE SHALL BE PRECLUDE D FROM FILING ANY DOCUMENTS EXCEPT THE JUDGMENTS IF INTENDS TO RELY U PON ANY. 5. IN THE RESULT THE MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE STANDS ALLOWED AND ORDER FOR DISMISSAL OF APPEAL DATED 1 8.04.2017 IS RECALLED. LET THE CASE BE FIXED ON ITS TERM. ORDER PRONOUNCED IN THE OPEN COURT ON 30. 11.2017. SD/- SD/- (T. S. KAPOOR) (N.K.CHOUDHRY ) ACCOUNTANT MEMBER JUDICIA L MEMBER DATED: 30.11.2017. /PK/ PS. MA NO.46(ASR)/2017 ARISING OUT OF ITA NO.578(ASR)/2013 ASST. YEAR:2008-09 5 COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A) (4) THE CIT (5) THE SR DR I.T.A.T. TRUE COPY BY ORDER