Ramesh Chand Inds.Ltd.,, New Delhi v. ITO, New Delhi

MA 544/DEL/2010 | misc
Pronouncement Date: 18-11-2011 | Result: Allowed

Appeal Details

RSA Number 54420124 RSA 2010
Bench Delhi
Appeal Number MA 544/DEL/2010
Duration Of Justice 1 year(s) 1 month(s) 3 day(s)
Appellant Ramesh Chand Inds.Ltd.,, New Delhi
Respondent ITO, New Delhi
Appeal Type Miscellaneous Application
Pronouncement Date 18-11-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted Not Allotted
Tribunal Order Date 18-11-2011
Assessment Year misc
Appeal Filed On 15-10-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : FRIDAY : NEW DELHI BEFORE SHRI I.P. BANSAL JUDICIAL MEMBER AND SHRI A.N. PAHUJA ACCOUNTANT MEMBER M.A NOS. 542 TO 544/DEL/2010 (ITA NOS.1696/DEL/2000 5646/D/98 & 2191/D/99 DEPARTMENTAL APPEALS) ASSESSMENT YEARS : 1993-94 1994-95 & 1995-96 M.A. NO.545/DEL/2010 (ITA NO.1721/DEL/1999 ASSESSEES APPEAL) ASSESSMENT YEAR: 1995-96 M/S RAMESH CHAND INDUSTRIES LTD. B-97 WAZIRPUR RING ROAD NEW DELHI. VS. DCIT CC-I NEW DELHI. (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI K.P. GARG CA RESPONDENT BY : SHRI ROHIT GARG DR O R D E R PER I.P. BANSAL JUDICIAL MEMBER: THESE MISCELLANEOUS APPLICATIONS HAVE BEEN FILED B Y THE ASSESSEE SEEKING RECALL OF EX PARTE ORDER PASSED BY THE TRIB UNAL DATED 21 ST AUGUST 2009. IN THESE MISC. APPLICATIONS IT HAS BEEN SUBMITTED T HAT THE ABOVE-MENTIONED MATTER WAS LISTED EARLIER FOR HEARING MANY TIMES AN D AFTER DUE PREPARATION APPEARANCE THESE WERE PUT ON DIFFERENT DATES FOR AR GUING THE APPEALS. HOWEVER THE APPEALS COULD NOT BE PROCEEDED TO BE HEARD FOR SEVERAL IMPONDERABLE REASONS AND THE MATTER HAD REMAINED PENDING. THE F AILURE TO REPORT ON 3 RD AUGUST 2009 WHEN THE EX PARTE ORDER WAS PASSED IS SOLITARY AND EXCEPTIONAL. IT IS FURTHER SUBMITTED THAT ON 3 RD AUGUST 2009 (FIXED DATE OF HEARING) CAUSE LIST FO R THE MONTH WAS NOT RECEIVED BY THAT DATE AND FOR THA T REASON THE OFFICE OF THE LEARNED AR OF THE ASSESSEE HAD NO KNOWLEDGE OF FIXA TION OF THE CASE FOR THAT MA NOS.542 TO 545/DEL/2010 2 DATE. IT IS FURTHER SUBMITTED THAT THE ASSESSEE CO MPANY IS RUNNING ITS OFFICE IN DELHI WITH A SKELETON STAFF. CONSEQUENT TO THE CES SATION OF BUSINESS THE DIRECTOR OF THE COMPANY IS MOSTLY OUT OF TOWN ATTENDING SMAL LER BUSINESS FOR HIS LIVELIHOOD AND FOR THAT REASON HE COULD NOT GET TO KNOW OF THE FIXATION OF THE APPEAL SO AS TO TAKE TIMELY ACTION. THE JUNIOR STAFF WHO MAY HAVE RECEIVED THE NOTICE WAS NOT ABLE TO COMPREHEND THE CONTENTS OF THE NOTICE FAILE D TO REPORT OF THE SAME TO THE DIRECTOR OF THE ASSESSEE COMPANY. STATING ALL THES E CAUSES AND CIRCUMSTANCES IT IS PRAYED IN THE MISC. APPLICATIONS THAT NON-APP EARANCE ON THE LAST FIXED DATE OF HEARING WAS FOR THE REASONS BEYOND THE CONTROL OF T HE ASSESSEE AND THE EX PARTE ORDER OF THE TRIBUNAL SHOULD BE RECALLED. THE FACT S STATED IN THE APPLICATIONS ARE SUPPORTED BY THE AFFIDAVIT FILED BY THE DIRECTOR OF THE ASSESSEE COMPANY WHICH IS DULY NOTARIZED. 2. AT THE TIME OF HEARING RELYING UPON THE CONTENT S OF THE APPLICATION AND ALSO THE CONTENTS OF AFFIDAVITS FILED BY THE DIRECT OR OF THE COMPANY IT WAS PLEADED BY THE LEARNED AR THAT EX PARTE ORDER OF THE TRIBUN AL SHOULD BE RECALLED IN ACCORDANCE WITH THE RULE 24 AND 25 OF THE APPELLATE TRIBUNAL RULES 1963 AS ASSESSEE HAS SUFFICIENT CAUSE FOR HIS NON-APPEARANC E ON THE FIXED DATE OF HEARING. 3. ON THE OTHER HAND THE RECALL OF THE ORDER WAS O BJECTED TO BY THE LEARNED DR ON THE GROUND THAT THE ORDER OF THE TRIBUNAL HAS BEEN PASSED ON MERITS AND IT HAS BEEN PASSED ON THE FAILURE OF THE ASSESSEE TO A TTEND THE PROCEEDINGS. 4. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS IN THE LIGHT OF THE MATERIAL PLACED BEFORE US. WE HAVE CAREFULLY GONE THROUGH THE ORDER SHEET AND IT IS NOTICED THAT THE AFOREMENTIONED APPEALS WERE EAR LIER ADJOURNED EITHER AT THE REQUEST OF THE ASSESSEE OR AT THE REQUEST OF THE RE VENUE. ON 28 TH MAY 2009 THE APPEALS WERE ADJOURNED AT THE REQUEST OF THE DEPART MENT FOR 6 TH JULY 2009. ON THE 6 TH JULY THE BENCH DID NOT FUNCTION AND ON 14 TH JULY IT AS ORDERED TO BE FIXED ON 3 RD AUGUST 2009. THE NOTICE FIXING THE HEARING ON 3 RD AUGUST 2009 WAS SENT TO THE ASSESSEE AND THE ACKNOWLEDGEMENT OF WHICH IS PLACED ON RECORD. THUS MA NOS.542 TO 545/DEL/2010 3 THE FAILURE IF ANY ON THE PART OF THE ASSESSEE IS ONLY FOR 3 RD AUGUST 2009 WHEN THE TRIBUNAL HAS PASSED EX PARTE ORDER. RULE 24 OF THE APPELLATE TRIBUNAL RULES 1963 DEALS WITH HEARING OF EX PARTE APPEALS FOR DEF AULT OF THE APPELLANT AND RULE 25 DEALS WITH THE HEARING OF APPEAL EX PARTE FOR DE FAULT OF THE RESPONDENT. BOTH THESE RULES HAVE PROVISO WHICH DESCRIBE THAT WHEREV ER SUCH APPEAL HAS BEEN DISPOSED OF EITHER FOR THE DEFAULT BY THE APPELLANT OR FOR THE REASON OF DEFAULT BY THE RESPONDENT THE TRIBUNAL HAS POWER TO SET ASIDE THE EX PARTE ORDER AND RESTORE THE APPEAL IF IT IS SATISFIED THAT THERE WA S SUFFICIENT CAUSE FOR NON- APPEARANCE WHEN THE APPEAL WAS CALLED FOR HEARING. THEREFORE THE EX PARTE ORDER OF THE TRIBUNAL CAN BE RECALLED IF THE TRIBUN AL IS SATISFIED THAT THERE IS SUFFICIENT CAUSE FOR NON-APPEARANCE EITHER BY THE A PPELLANT OR BY THE RESPONDENT. 5. IN THE PRESENT CASE THREE APPEALS WERE FILED BY THE REVENUE THEREFORE THE ASSESSEE IS RESPONDENT IN THOSE APPEALS AND ONE APPEAL IS FILED BY THE ASSESSEE AND IN THAT CASE THE ASSESSEE BECOMES THE APPELLANT. IT IS THE CASE OF THE ASSESSEE THAT ONLY ON ONE DATE IT HAS MADE THE DEFAULT AND IT IS FOR THAT REASON THAT THE LEARNED AR OF THE ASSESSEE DID NOT PUT HIS ATTENDANCE DUE TO THE NON-RECEIPT OF CAUSE LIST AND THE SECOND REASON GIV EN IS THAT THE ASSESSEE IS HAVING SKELETON STAFF AT ITS DELHI OFFICE AND THE D IRECTOR OF THE ASSESSEE HAS BEEN VISITING OUTSTATIONS. ALL THESE FACTS ARE SUPPORTED BY THE AFFIDAVITS FILED IN RESPECT OF ALL THE YEARS BY THE DIRECTOR OF THE ASSESSEE CO MPANY. IN THESE CIRCUMSTANCES WE ARE SATISFIED THAT THE ASSESSEE W AS PREVENTED BY SUFFICIENT CAUSE FROM APPEARING ON THE 3 RD AUGUST 2009. THEREFORE WE SET ASIDE THE AFOREMENTIONED EX PARTE ORDER AND RESTORE ALL THESE APPEALS FOR HEARING AFRESH SUBJECT TO AWARD OF COST TO THE ASSESSEE OF A SUM O F RS.10 000/- WHICH THE LD. COUNSEL OF THE ASSESSEE HAD AGREED TO PAY WITHIN A WEEK FROM THE RECEIPT OF THIS ORDER. THE SAID SUM OF RS.10 000/- SHALL BE PAID B Y THE ASSESSEE AS A TAX PAYABLE AS PER PROVISIONS OF RULE 32A(2) OF THE APP ELLATE TRIBUNAL RULES 1963. SUBJECT TO SUCH PAYMENTS MADE BY THE ASSESSEE THESE APPEALS WILL BE FIXED FOR HEARING ON 16 TH FEBRUARY 2012. THE DATE WAS DULY NOTED BY THE LE ARNED AR OF MA NOS.542 TO 545/DEL/2010 4 THE ASSESSEE AND HE HAS WAIVED HIS RIGHT TO RECEIVE NOTICE OF HEARING FOR 16 TH FEBRUARY 2012. 6. IN THE RESULT THE MISCELLANEOUS APPLICATIONS FI LED BY THE ASSESSEE ARE ALLOWED IN THE MANNER AFORESAID. THE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 18.1 1.2011. SD/- SD/- [A.N. PAHUJA] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 18.11.2011. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT DELHI BENCHES