Income Tax Appellate Tribunal - Ahmedabad
M/S. Jafari Momin Vikas Co-Op. Credit ... vs The Income Tax Officer, Ward-2,, Patan on 30 July, 2018
आयकर अपील य अ धकरण, अहमदाबाद यायपीठ ',' अहमदाबाद ।
IN THE INCOME TAX APPELLATE TRIBUNAL
" A " BENCH, AHMEDABAD
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BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER
And SMT MADHUMITA ROY, JUDICIAL MEMBER
Misc. Application Nos.50, 51 & 52/Ahd/2018
(Arising out of ITA Nos.2320, 2321 & 2322/Ahd/2014)
( नधा रण वष / Assessment Years : 2007-08, 2010-11 & 2011-12)
M/s. Jafari Momin Vikas Co- बनाम/ ITO,
Op Credit Society Ltd., Vs. Ward - 2,
At-Kakoshi, Ta-Siddhpur, Patan
Dist-Patan - 384665
थायी ले खा सं . /जीआइआर सं . / PAN/GIR No. : AAAAJ 1053 F
(अपीलाथ /Appellant) .. ( यथ / Respondent)
अपीलाथ ओर से /Appellant by : Shri H. V. Doshi, C.A.
यथ क ओर से/Respondent by : Shri Mudit Nagpal, Sr. D.R.
ु वाई क तार ख /
सन Date of Hearing 15/06/2018
घोषणा क तार ख /Date of Pronounce ment 30/07/2018
आदे श / O R D E R
PER WASEEM AHMED, ACCOUNTANT MEMBER:
By way of these Miscellaneous Applications, the assessee is seeking to recall the order passed by the Hon'ble ITAT in ITA Nos. 2320, 2321 & 2322/Ahd/2014.
2. The grievance of the assessee in all Miscellaneous Application is two folds, i.e., the Hon'ble ITAT passed the ex parte order and without adjudicating all the grounds of appeal.
MA Nos.50, 51& 52/Ahd/2018 (arising out of ITAT Nos.2320, 2321&2322/Ahd/2014) M/s Jafari Momin Vikas Co-Op credit Society Ltd.. vs. ITO Asst.Year -2007-08, 2010-11 & 2011-12 -2-
3. The issues in all the MA are common. Therefore we clubbed all of them together for the sake of brevity and convenience. However, we take MA No.50/Ahd/2018 as a lead case. The assessee before us has submitted as under:
"1. The above appeal was disposed of by the tribunal by its order dated 31/07/2017 by ex-parte proceedings. The appellant above named begs to present this application for reconsidering the appeal because on 28th July, 2017 i.e. on the date of hearing, there was heavy rain between Mehsana to Ahmedabad and AR, Shri CA H V Doshi from Mehsana, could not attend for seeking adjournment of 1st hearing. So, appellant was prevented for appearing before ITAT because of sufficient and reasonable cause. Though it was first hearing and also heavy rain in surrounding area, matter was heard on representation of DR that the issue is covered and accordingly matter is decided against the appellant without giving further opportunity for hearing for submissions on grounds of appeal. So, appellant prays for reconsidering the appeal. Appellant respectfully submit that the Tribunal may be pleased to suitably amend its order by giving opportunity and considering for plea of appellant.
2. The above appeal was disposed of by the tribunal by its order without considering the grounds of appeal filed with form 36. The appellant above named begs to present this application for rectification of mistake which is apparent from record in the said order by not considering all the ground of appeal.
3. The grounds of appeal filed by the appellant were as under. 3.1 Learned CIT (A) had erred in law and facts in confirming addition made by AO by way of disallowing claim of deduction u/s 80P(2)(a)(i) of IT Act to the extent of Rs.5,33,729/- in respect of interest income by treating interest income received on FD of Nationalized Banks as income from other sources u/s 56 if IT Act by wrongly applying ratio laid down by Supreme Court in the case of Totagars Co. Op. sale Society Ltd vs. ITO though Ahmedabad ITAT has decided in favour of appellant's own case on similar facts in ITA No. 1491/Ahd/2012 Dt. 04/09/2012 by distinguishing the facts of the appellant's case from Totagars case.
MA Nos.50, 51& 52/Ahd/2018 (arising out of ITAT Nos.2320, 2321&2322/Ahd/2014) M/s Jafari Momin Vikas Co-Op credit Society Ltd.. vs. ITO Asst.Year -2007-08, 2010-11 & 2011-12 -3- 3.2 Learned CIT(A) had further erred in enhancing addition of Rs.8,18,043/- i.e. from Rs.5,33,729/- as made by AO to Rs.13,51,772/- by way of treating Gross interest income of Rs.13,51,772/- as income from other sources instead of Rs.5,33,729/- as worked out by AO by calculating income on prorate basis after considering interest expenses on proportionate basis.
4. The Tribunal has disposed of the appeal only considering that there is only one ground which is mentioned in para 3 of the order which read as under:
"3. The common grievance relates to the disallowance of the claim of deduction u/s. 80P(2)(a)(i) of I T Act in respect of interest income by treating interest i income received on fixed deposit of nationalized bank as income from other sources."
4. However appellant has taken second ground of appeal for considering deduction u/s. 57 of I T Act which has not been considered in order. The ground of appeal is as under.
"Learned CIT(A) had further erred in enhancing addition of Rs.8,18,043/- i.e. from Rs.5,33,729/- as made by AO to Rs.13,51,772/- by way of treating Gross interest income of Rs.13,51,772/- as income from other sources instead of Rs.5,33,729/- as worked out by AO by calculating income on prorate basis after considering interest expenses on proportionate basis."
5. It is respectfully submitted that the Tribunal may be pleased to suitably amend its order to rectify the aforesaid mistake, which is apparent from the record. The Respondent therefore prays that there is a mistake apparent from the record and the same may be rectified by giving opportunity and considering for plea of appellant."
On the other hand the ld. DR did not object if the matter is recalled and fixed for hearing for fresh adjudication by law.
4. Heard rival submissions and perused the material available on record. We note that the instant appeal was decided ex parte and all the MA Nos.50, 51& 52/Ahd/2018 (arising out of ITAT Nos.2320, 2321&2322/Ahd/2014) M/s Jafari Momin Vikas Co-Op credit Society Ltd.. vs. ITO Asst.Year -2007-08, 2010-11 & 2011-12 -4- grounds raised by the assessee were also not adjudicated by the Hon'ble ITAT vide order dated 31st July. 2017. Moreover, after considering the submission of the assessee, we are satisfied that there was sufficient cause for nonappearance of the assessee on the date of hearing, i.e., 28th July 2017. In case of the ex parte order, the provisions Rule 24 of Appellate Tribunal Rule 1963 requires to recall the order if there was sufficient cause of nonappearance of the applicant at the time hearing. The relevant extract of Rule 24 of Appellate Tribunal Rule 1963 reads as under :
"26[Hearing of appeal ex parte for default by the appellant.
24. Where, on the day fixed for hearing or on any other date to which the hearing may be adjourned, the appellant does not appear in person or through an authorised representative when the appeal is called on for hearing, the Tribunal may dispose of the appeal on merits after hearing the respondent :
Provided that where an appeal has been disposed of as provided above and the appellant appears afterwards and satisfies the Tribunal that there was sufficient cause for his non-appearance, when the appeal was called on for hearing, the Tribunal shall make an order setting aside the ex parte order and restoring the appeal.]"
In view of the above, ,we recall the order and fix the next date of hearing, i.e., 14th August 2018. No separate notice will be issued to any of the party. Thus, the ground of appeal raised by the assessee in its MA is allowed.
5. Now coming to other MA's filed by the assessee. As we have already recalled the ex parte order passed by the Hon'ble ITAT vide ITA No.2320/Ahd/2014 therefore, respectfully following the same, we recall the other orders of the Hon'ble ITAT vide ITA Nos. 2321 & MA Nos.50, 51& 52/Ahd/2018 (arising out of ITAT Nos.2320, 2321&2322/Ahd/2014) M/s Jafari Momin Vikas Co-Op credit Society Ltd.. vs. ITO Asst.Year -2007-08, 2010-11 & 2011-12 -5- 2322/Ahd/2014. Both these appeals are also fixed for hearing on 14th August 2018. No separate notice will be issued to any of the party. Hence, the grounds of appeal raised by the assessee in its both MA's are allowed.
6. In the result, all the Misc. Applications filed by the assessee are allowed.
This Order pronounced in Open Court on 30/07/2018
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(MADHUMITA ROY) (WASEEM AHMED)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Ahmedabad; Dated 30/07/2018
Priti Yadav, Sr.PS
आदे श क त"ल#प अ$े#षत/Copy of the Order forwarded to :
1. अपीलाथ / The Appellant
2. यथ / The Respondent.
3. संबं'धत आयकर आयु)त / Concerned CIT
4. आयकर आय)
ु त(अपील) / The CIT(A)
5. ,वभागीय /त/न'ध, आयकर अपील य अ'धकरण, अहमदाबाद / DR, ITAT, Ahmedabad
6. गाड4 फाईल / Guard file.
आदे शानुसार/ BY ORDER, स या,पत /त //True Copy// उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील य अ धकरण, अहमदाबाद / ITAT, Ahmedabad