M/s. Hindusthan MI Swaco Ltd.,, Bharuch v. The DY.CIT., Bharuch Circle,, Bharuch

MA 239/AHD/2009 | 2005-2006
Pronouncement Date: 29-01-2010 | Result: Allowed

Appeal Details

RSA Number 23920524 RSA 2009
Assessee PAN AAACH5320B
Bench Ahmedabad
Appeal Number MA 239/AHD/2009
Duration Of Justice 6 month(s) 14 day(s)
Appellant M/s. Hindusthan MI Swaco Ltd.,, Bharuch
Respondent The DY.CIT., Bharuch Circle,, Bharuch
Appeal Type Miscellaneous Application
Pronouncement Date 29-01-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 29-01-2010
Assessment Year 2005-2006
Appeal Filed On 15-07-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'A' [BEFORE S/SHRI H L KARWA JM AND A N PAHUJA AM] MISCELLANEOUS APPLICATION NO.239/AHD/2009 [ARISING OUT OF ITA NO.3774/AHD/2008] (ASSESSMENT YEAR:- 2005-06) HINDUSTAN MI SWACO LTD. (FORMERLY KNOWN AS HINDUSTAN MAGCOBAR CHEMICALS LTD.) 208/1 GIDC INDUSTRIAL AREA PANOLI (VIA ANKLESHWAR) 394 116 [PAN:AAACH5320B] V/S THE DEPUTY COMMISSIONER OF INCOME-TAX BHARUCH CIRCLE BHARUCH (APPLICANT) [ORIGINAL APPELLANT] (RESPONDENT) [ORIGINAL RESPONDENT] APPLICANT BY :- SHRI S N SOPARKAR AR RESPONDENT BY:- SMT. NEETA SHAH DR O R D E R A.N PAHUJA : THIS IS A MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE SEEKING RECALL OF AN ORDER DATED 03-04-20 09 OF THE ITAT ON THE GROUND THAT THE ASSESSEE WAS PREVENTED BY SU FFICIENT CAUSE FROM APPEARING DURING THE COURSE OF HEARING ON 17-0 3-2009. 2 IN THEIR APPLICATION THE ASSESSEE EXPLAINED T HAT THE APPEAL FILED IN THE YEAR 2008 WAS LISTED FOR HEARING FOR T HE FIRST TIME ON 19-01-2009 AND THEN ON 17-03-2009. THE APPLICANT WAS UNDER THE IMP RESSION THAT DUE TO CONTENTIOUS ISSUES INVOLVED IN THE APPEAL PAPER BO OK OF THE RELEVANT DOCUMENTS WOULD BE NECESSARY BESIDES ENGAGEMENT OF A SENIOR ADVOCATE TO REPRESENT THE APPEAL FOR PROPER REPRESENTATION OF THE FACTS AND L AW BEFORE THE HONBLE ITAT.THE APPLICANT WAS GIVEN TO UNDERSTAND THAT DUE TO THE PRECEDENT FOLLOWED BY THE HONBLE BENCHES OF THE ITAT THE APPEAL FILE D IN THE YEAR 2008 WOULD BE ADJOURNED SINE DIE TO AWAIT ITS TURN FOR HEARING. E VEN WHEN THE APPLICANT WAS UNDER THE PROCESS OF FINALIZING PAPER BOOK AND ENGA GING AN ADVOCATE THIS MA NO.239/AHD/2009 2 TRIBUNAL DECIDED THE APPEAL EX PARTE ON THE BASIS OF NON-APPEARANCE ON ONLY 2 OCCASIONS.THE LEARNED AR EXPLAINED THAT SINCE THEI R APPEAL ON THE ISSUE OF ADDITION OF RS.65 00 000/- HAD ALSO BEEN A DJUDICATED BY THE LD. CIT(A) WITHOUT HEARING THE ASSESSEE IN THE INT EREST OF JUSTICE AND FAIR PLAY THE ORDER PASSED BY THE ITAT MAY BE RECALLED IN TERMS OF RULES 24 AND 25 OF THE ITAT RULES THE ASSESSEE HAVING BEEN PREVENTED BY SUFFICIENT CAUSE FROM APPEARING DURING THE COURSE OF HEARING. ON THE OTHER HAND THE LEARNED DR VEHEMENT LY OPPOSED THE PLEA MADE ON BEHALF OF THE ASSESSEE ON THE GROUND T HAT THERE WAS NO SUFFICIENT CAUSE FOR NON-APPEARANCE BY THE ASSES SEE DESPITE THE ADMISSION OF SERVICE OF NOTICE. SHE ADDED THAT SINC E THE APPEAL HAS BEEN DECIDED ON MERITS RECALLING THE ORDER WOULD T ANTAMOUNT TO REVIEW OF THE ORDER. IN THIS CONNECTION SHE RELIED ON THE DECISIONS IN THE CASES OF NIRANJAN & CO. LTD. VS. ITAT & OTHERS 122 ITR 519 (CAL) POPULAR ENGG CO. VS. ITAT 248 ITR 577 (PUNJA B & HARYANA) AND SMART PVT. LTD. VS. ITAT 182 ITR 384(DELHI). 3. AFTER HEARING THE PARTIES AND CONSIDERING THE F ACTS OF THE CASE WE ARE OF THE OPINION THAT THERE WAS A REASON ABLE CAUSE FOR ASSESSEE'S FAILURE TO APPEAR BEFORE THE ITAT ON THE DATE OF HEARING. APPARENTLY THE DISPOSAL OF THE APPEAL WAS IN VIOLA TION OF THE PRINCIPLE OF ' AUDI ALTERAM PARTEM '. THE PRAYER IN SUCH A SITUATION FO R REHEARING THE APPEAL IS NOT A PRAYER TO REVIEW ITS EARLIER DECISION AS CONTENDED BY THE LD. DR; RATHER IT IS TO SET ASIDE AN EX PARTE ORDER AND FOR AFFORDING AN OPPORT UNITY OF BEING HEARD. THIS POWER IS INHERENT IN THE TRIBUNAL. POWER TO RECALL AN ORDER IS PRESCRIBED IN TERMS OF R. 24 OF THE ITAT RULES 1963 AND THAT TOO ONLY IN CASES WHERE THE ASSESSEE SHOWS THAT IT HAD A REASONABLE CAUSE FOR BEING ABSE NT AT A TIME WHEN THE APPEAL WAS TAKEN UP AND WAS DECIDED EX PARTE. 3.1 AS REGARDS THE DECISION IN THE CASE OF NIRA NJAN & CO. LTD. (SUPRA) RELIED ON BY THE LD. DR THE SAID DECISION WAS REN DERED ON DIFFERENT FACTS AND IS NOT APPLICABLE TO THE FACTS OF THE CASE UNDER CONSI DERATION. IN THE CITED DECISION HONBLE HIGH COURT OBSERVED THAT AS A MATTER OF FA CT NOWHERE FROM THE ORDER OF MA NO.239/AHD/2009 3 THE TRIBUNAL PASSED ON SUCH RECTIFICATION APPLICATI ON IT IS FOUND THAT THE TRIBUNAL HAS REJECTED THIS APPLICATION ON THE GROUND THAT TH ERE WAS NO MISTAKE APPARENT FROM THE RECORD.ACCORDINGLY THE HONBLE HIGH COURT RESTORED THE MATTER TO THE FILE OF THE ITAT. APPARENTLY RELIANCE ON THIS DECISION IS MISPLACED. 3.2 IN SMART PVT. LTD.(SUPRA) RELIED ON BY THE LD. DR HONBLE HIGH COURT DIRECTED THE ITAT TO ALLOW AN OPPORTUNITY OF HEARING TO THE ASSESSEE BEFORE DISPOSING OF THE MISCELLANEOUS APPL ICATION. HONBLE HIGH COURT OBSERVED THAT PRINCIPLES OF NATURAL JUST ICE HAVE TO BE READ INTO THE PROVISIONS OF SECTION 254(2). ANY ORDER WHICH IS PA SSED UNDER SECTION 254(2) ESPECIALLY WHEN IT HAS THE EFFECT OF VARYING THE TA X LIABILITY SHOULD BE PASSED ONLY AFTER AFFORDING AN OPPORTUNITY TO BOTH THE SIDES OF BEING HEARD AND ACCORDINGLY RESTORED THE MATTER TO THE FILE OF THE ITAT. 3.3 IN POPULAR ENGG. VO.(SUPRA ) THERE IS NOTHI NG TO SUGGEST THAT THE APPEAL WAS DECIDED BY THE ITAT EXPARTE. IN THAT CASE WHILE AFFIRMING THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) THE TRIBUNAL AFTER HEARING THE PARTIES HAD APPROVED THE SAME. SUBSEQUENTLY WITHOUT EVEN RECOR DING A FINDING THAT THE ORDER DATED DECEMBER 15 1997 IS VITIATED BY A MIS TAKE APPARENT FROM THE RECORD THE TRIBUNAL PASSED THE ORDER OF RECALL SIM PLY BY OBSERVING THAT THE MERITS OF THE CASE HAD NOT BEEN DISCUSSED AND THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) HAD BEEN CONFIRMED BY MAKING R EFERENCE TO THE OFFICE NOTE. IN THESE CIRCUMSTANCES HONBLE HIGH COURT HELD TH AT THE ORDER DATED DECEMBER 15 1997 SATISFIED THE REQUIREMENT OF A SPEAKING O RDER AND THE IMPUGNED ORDER MUST BE HELD AS VITIATED BY AN ERROR OF LAW INASMU CH AS IT FAILS TO SATISFY THE CONDITION PRECEDENT FOR EXERCISE OF POWER UNDER SEC TION 254(2) OF THE ACT . HOWEVER SUCH ARE NOT THE FACTS IN THIS CASE SINCE A PPEAL WAS DISPOSED OF EXPARTE. THE CITED DECISION HAVING BEEN RENDERED ON DIFFERENT FACTS IS NOT APPLICABLE TO THE FACTS OF THE CASE UNDER CONSIDERA TION. THEREFORE WE ARE OF THE OPINION THAT RELIANCE ON THE SAID DECISION IS MISPL ACED. EVEN OTHERWISE THE LD. DR DID NOT DEMONSTRATE BEFORE US AS TO HOW THE CITE D DECISIONS ARE RELEVANT TO THE FACTS OF THE CASE UNDER CONSIDERATION. IF THE T RIBUNAL HAS COMMITTED AN INADVERTENT ERROR WHICH RESULTS IN INJUSTICE TO ONE OR OTHER SIDE THE TRIBUNAL IS MA NO.239/AHD/2009 4 ENTITLED TO RECALL THE ORDER IN GIVEN SET OF FACTS AND CIRCUMSTANCES OF THE CASE AND DECIDE THE MATTER IN ACCORDANCE WITH LAW FACTS AND EVIDENCE ON RECORD. 4. IN VIEW OF THE FOREGOING WE RECALL THE ORDER DATED 3.4.2009 OF THE TRIBUNAL AND DIRECT THE REGISTRY TO FIX THE MATTER IN REGULAR COURSE. 5. IN THE RESULT MA IS ALLOWED . ORDER PRONOUNCED IN OPEN COURT ON 29TH JANUARY 2 010. SD/- SD/- (H L KARWA) JUDICIAL MEMBER (A N PAHUJA) ACCOUNTANT MEMBER DATE : 29-1-2010 COPY OF THE ORDER FORWARDED TO : 1. HINDUSTAN MI SWACO LTD. (FORMERLY KNOWN AS HIND USTAN MAGCOBAR CHEMICALS LTD.) 208/1 GIDC INDUSTRIAL AR EA PANOLI (VIA ANKLESHWAR) 394 116 2. THE DEPUTY COMMISSIONER OF INCOME-TAX BHARUCH C IRCLE BHARUCH 3. THE CIT CONCERNED 4. THE CIT(A)-VI BARODA 5. THE DR ITAT AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT AHMEDABAD