Income Tax Appellate Tribunal - Chandigarh
M/S Anshul Goyal Land & Housing Ltd., ... vs Dcit, Ludhiana on 7 August, 2019
आयकर अपील य अ धकरण,च डीगढ़ यायपीठ "ए" च डीगढ़
IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH
BENCH 'A' CHANDIGARH
ीमती दवा संह, या"यक सद#य एवं डा. बी.आर.आर. कुमार, लेखा सद#य
BEFORE: SMT. DIVA SINGH, JM & Dr. B.R.R.KUMAR, AM
M.A. 246/CHD/2018 in
आयकर अपील सं./ ITA No. 157/CHD/2012
नधा रण वष / Assessment Year : 2008-09
M/s Anshul Goyal Land & Housing बनाम The DCIT,
Ltd., Village - Gill, Ludhiana. C-VII, Ludhiana.
VS
थायी लेखा सं./PAN No: AAFCA7899D
अपीलाथ /Appellant यथ /Respondent
नधा रती क! ओर से/Assessee by : Shri Pankaj Bhalla, CA
राज व क! ओर से/ Revenue by : Smt. Chander Kanta, Sr.DR
सन
ु वाई क! तार&ख/Date of Hearing : 05.08.2019
उदघोषणा क! तार&ख/Date of Pronouncement : 07.08.2019
आदे श/ORDER
PER DIVA SINGH By the present Miscellaneous Application filed u/s 254 (2) of the Income Tax Act,1961 the assessee prays for recall of the ex-parte order dated 14.03.2018 in ITA No. 157/CHD/2012 pertaining to 2008-09 assessment year wherein the appeal of the assessee was dismissed in-limine for non-representation.
2. The ld. AR inviting attention to the revised Miscellaneous Application filed submitted that it is correct that the assessee over a period of time had been given various opportunities on account of which dismissing the adjournment dated 06.02.2018, the appeal was dismissed. Referring to para 8 of the revised application, it was submitted by the ld. AR that for arguing the appeal supporting M.A. 246/CHD/2018 In ITA 157/CHD/2012 Page 2 of 5 evidences were not available with the assessee. Accordingly, time and again adjournments had been moved. It was submitted that since the evidences required were third party evidences and not readily available, the procurement of these took time. These evidences are now available and the assessee is ready to argue the appeal on merits and shall not need to seek time. Accordingly, it was his prayer that the ex-parte order may be recalled. The said submission, it was submitted, is supported by the affidavit of the Mr. Sachin Goyal, Director. Specific attention was invited to para 5 and 6 of the affidavit dated 27.05.2019, which read as under :
" 5 . That I have filed an undertaking no frivolous adjournment shall be sought. That all endeavor shall be made to submit the paper book before the date of hearing if an opportunity is granted to us.(undertaking as annexure-3)
6. The delay in filing of paper book and arguing the appeal is attributable to the reason that the appellant had to adduce some additional evidences that is Affidavit of the seller that they insisted for cash payment and certificate by the Sarpanch of Village Gill that there was no bank in year 2007-08. Since these were third party evidence, the delay was caused in getting the same.
3. Reliance was placed on (i) Sauravjhunjhunwala vs. CIT (2004) SCC OnLine Cal 395; 2) Tower Capital & Securities Pvt. Ltd. Vs. ACIT, Mumbai 2012 SCC OnLine ITAT 13714; and 3) CIT, Madras V. S. ChenniappaMudaliar, Madurai (1969) 1 SCC 591 it was his prayer that the ex-parte order may be recalled.
4. The ld. Sr.DR Ms. Chander Kanta on considering of the material available on record posed no objection to the recall of the order.
5. We have heard the rival submissions and perused the material available on record. It is seen that the assessee filed an appeal on M.A. 246/CHD/2018 In ITA 157/CHD/2012 Page 3 of 5 21.03.2012 before the ITAT wherein the correctness of the order dated 10.01.2012 of CIT(A)-II Ludhiana pertaining to 2008-09 was assailed. A perusal of the record shows that the appeal was dismissed by the Co-ordinate Bench on 15.05.2019 for non- representation by order dated 17.05.2019. Said order was recalled vide order dated 28.11.2012 in M.A. 26/CHD/2017 by the Co- ordinate Bench where one of us ( ld. AM) was the author. As a result of this order, the appeal came up for hearing on 9 th January,2018. On the said date, adjournment was sought by the ld. AR and the appeal stood adjourned. On the next date, another adjournment was moved on the following ground :
Sub : Application for adjournment of proceedings Hon'ble Bench, Kindly refer to the above appeal fixed by the Hon'ble Bench for 06th February, 2018.The counsel of assessee Sh. Pankaj Bhalla who was to conduct this appeal is busy due to wedding of a very close friend (copy of documentary evidence annexed herewith). Further the details & information as required are being compiled which shall take some more time.
In view of the above, it is most respectfully prayed that adjournment may kindly be granted.
Thanking you,
Yours faithfully,
Dated : 06.02.2017 For V.V.Bhalla & Co.
Chartered Accountants
Sd/-
( PANKAJ BHALLA)
Counsel
5.1 On which ground the appeal was rejected holding as under :
"2. At the time of hearing an adjournment application was placed on behalf of the assessee moved by the Ld. AR. In support of the application a person Mr Siddhant was present. He was required to address why time was required. The person present stated that he was an employee as such unaware about the contents of the application moved. The application has been moved stating that the counsel was not available. This fact was made known to the person present who reported that he was unaware. The record shows that in the facts of the present case the assessee has treated the seeking of adjournment and fixing of appeal as a very casual exercise which suggests that the assessee infact may not be serious in pursuing the appeal filed. The said conclusion is borne out from the facts on M.A. 246/CHD/2018 In ITA 157/CHD/2012 Page 4 of 5 record which shows that the appeal of the assessee filed on 21/03/2012, after giving opportunity was ultimately dismissed by the coordinate Bench vide order dated 17/05/2012 on the grounds of non-prosecution. Aggrieved by this order the assessee filed a Miscellaneous Application praying for a recall of the said order.
The coordinate Bench vide order dated 28/11/2017 in MA 26/CHD /2017 was pleased to recall the order and direct the fixation of the appeal for hearing on merits on 09/01/2018. On the said date despite the appeal having been filed on 21/03/2012 the Ld. AR was unable to argue the appeal and moved an adjournment application stating that documents are required to be compiled. In support of the said application Proxy Counsel Mr S Yadav, CA was present. Accepting the request in good faith, time was granted and the appeal was listed for hearing on 6th of February, 2018. As a result of this order, the appeal was adjourned to 06.02.2018. The date was pronounced in the Open Court. The appeal came up for hearing on the said date i.e. 06.02.2018. On the said date also an adjournment application was moved on behalf of the assessee. As noted, some office employee was present in support of the same who was unaware about the contents of the application. Further no paper book/documents etc. till date have been filed either on the said date or prior to the said date on behalf of the assessee . It is further evident from the record that on each of the dates, the counsel has not cared to be present and has either sent proxy counsel or an employee. In the circumstances it can be safely presumed that the assessee may not be serious in pursuing the appeal filed as no attempts despite having filed the appeal in 2012 have been made to place any documents/paper-book on record in support of the grounds. In the circumstances, grant of any further time would be a waste of government time and machinery. In view of the same, the adjournment request of the assessee is dismissed and the appeal of the assessee is dismissed in limine relying upon order of the ITAT Delhi Benches in the case of CIT Vs Multiplan India Pvt. Ltd. (1991) 38 ITD 320 and the decision of Hon'ble Madhya Pradesh High Court in the case of Late Shri Tukoji Rao Holkar Vs Wealth Tax Commissioner 223 ITR 480 (MP) etc."
(emphasis supplied) 5.2. Taking due note of the fact that the hearing in the present appeal has been impeded by the assessee all along and being conscious of the fact that there are no powers or machinery with the ITAT to enforce either the presence of the appellant after having filed the appeal or insist that representation be made. The only way to ensure representation and weed out non serious appellants is by way of dismissal of appeal in limine on the grounds of non-representation where abuse of the request for time is noticed. Considering the application and especially the undertaking given by the assessee on M.A. 246/CHD/2018 In ITA 157/CHD/2012 Page 5 of 5 an affidavit addressed in para 5 which has been extracted in the earlier part of this order, we accepting the explanation as bonafide and true, recall the impugned order dated 27.07.2018 in the interests of justice thus, exercising the powers as vested in us by proviso to Rule 24 of the ITAT Rules 1963. Support is drawn from the decision of the Hon'ble Delhi High Court in the case of CIT Vs Ansal Housing Construction Ltd. 274 ITR 131 (Del).
6. Registry, accordingly, is directed to fix the appeal for hearing on merits on 18.09.2019 a date which was stated to be convenient to the counsel. The date was announced in the presence of the parties at the time of hearing itself. Accordingly, for the said date, no specific notice shall be issued to the parties. Said order was pronounced at the time of hearing itself.
7. In the result, the Miscellaneous Application filed by the assessee is allowed.
Order Pronounced in the Open Court on 07.08.2019.
Sd/- Sd/-
( डा. बी.आर.आर. कुमार) ( दवा संह )
(Dr. B.R.R. KUMAR) (DIVA SINGH)
लेखा सद#य/ Accountant Member या"यक सद#य/Judicial Member