Income Tax Appellate Tribunal - Panji
M/S. Chaudhary Enterprises,, Bathinda vs The Income Tax Officer, Ward 1(2),, ... on 30 November, 2017
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., Vs. Income Tax Officer,
Ganpati Agro Complex, Ward-1(2), Bathinda.
Malout Road, Bathinda.
PAN:AAEFC-2374B
(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 pronouncement:30.11.2017
ORDER
PER N. K. CHOUDHRY:
The instant Miscellaneous Application has been filed by the 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 prosecution in limine due to the non representation on behalf of the assessee. It was observed by the Hon'ble Judge of SMC Bench that the appeal under consideration filed on 16.09.2013 was dismissed for non- prosecution by the assessee on dated 1st April, 2014 and thereafter, the said order was recalled vide order dated 20.09.2016. On the date of hearing on 17th April, 2017, the office peon/assistant was present in Court but without any authorization and identification stated that he was not aware as to why the adjournment had been moved. It was 2 MA No.46(Asr)/2017 Arising out of ITA No.578(Asr)/2013 Asst. Year:2008-09 further observed that in the peculiar facts where despite filing in appeal in Sep., 2013 if till date necessary papers have 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 view thereof the adjournment application was rejected and the appeal of the assessee was dismissed in limine. However, from the order, it reflects 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 the 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 above order.
2. Feeling aggrieved against the said order dated 18.04.2017, 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. Ashwani Kalia, who is stationed at Amritsar, for taking necessary action and subsequently the Ld. Counsel Sh. Ashwani Kalia informed the assessee that as per the notice, the appeal is fixed for hearing before the Division Bench, but the Division Bench shall not be functioning from April, 2017 to 25th April, 2017 on account of leave of one of the Hon'ble Member and it was further informed to the assessee that the appeal shall automatically get adjourned.
Subsequently, close to the date of hearing, it was informed 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 and to furnish the required documents. However, the ld. Counsel at Bathinda 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 Amritsar to 3 MA No.46(Asr)/2017 Arising out of ITA No.578(Asr)/2013 Asst. Year:2008-09 seek adjournment which was duly informed to the Ld. Counsel at Amritsar to apply for adjournment on the grounds detailed above. However, the request for adjournment was rejected by the Hon'ble 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 the 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 short period due to certain family matter, therefore, on the aforesaid 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 the 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 counsel through registered post on 28.03.2014 sought adjournment 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 subsequently recalled by the Hon'ble Bench on satisfying about non-appearance 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 circumstances of the case. As we considered the submissions of the Ld. AR that the Division Bench shall not be functioning from 1st April, 2017 to 25th April, 2017 because one of the Hon'ble Member was on long leave, however, 4 MA No.46(Asr)/2017 Arising out of ITA No.578(Asr)/2013 Asst. Year:2008-09 information had been received quite late that the appeal shall be taken up before the SMC Bench and time was too short and local counsel was unable to come at Amritsar in a such short period due to certain family matters. We found reasonability in the reasoning of the Ld. AR Sh. Ashwani Kalia and considering the facts that the appeal has not been decided on merits but dismissed in limine and specifically the liberty was granted to move application for recalling of the order under challenge explaining the reasons why over the years relevant papers were still not readily available to its counsel. As we realized that case pertains to the District of Bathinda and as it has informed by Ld. AR that local counsel has to assist the Ld. AR at Amritsar, therefore, 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 passed by the SMC Bench. Hence, the same is recalled but subject to the condition that the assessee shall submit relevant documents whatever at one instance which intends to rely in support of its case within 15 days of this order and thereafter, the assessee shall be precluded from filing any documents except the judgments if intends to rely upon any.
5. In the result, the Miscellaneous Application filed by the assessee stands allowed and order for dismissal of appeal dated 18.04.2017 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 JUDICIAL MEMBER
Dated: 30.11.2017.
/PK/ Ps.
5 MA No.46(Asr)/2017
Arising out of ITA No.578(Asr)/2013
Asst. Year:2008-09
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