Raj Corporation, , Ahmedabad vs Assessee

IN THE INCOME TAX APPELLATE TRIBUNAL " C " BENCH, AHMEDABAD (BEFORE SHRI SHAILENDRA Kr. YADAV, J.M. & SHRI ANIL CHATURVEDI, A.M.)

M. A. No.189/AHD/2014(in ITA No. 77/AHD/2011) (Assessment Year: 2007-08)

M/s. Raj Corporation C/o. V/S The Income Tax Officer, Ketan H. Shah, Advocate Ward-9(3), Ahmedabad 901, Sapphire Complex, Near Cargo Motors, C.G. Road, Ahmedabad-380009 (Appellant) (Respondent)

Appellant by : Shri K.H. Shah Respondent by : Shri M.K. Singh, Sr. D.R.

(आदेश )/ORDER

Date of hearing : 06-02-2015 Date of Pronouncement : 19-02-2015

PER SHRI ANIL CHATURVEDI,A.M.

1. Through this M.A. Assessee want us to recall the order passed in ITA No. 77/AHD/2011 order dated 07.11.2014 interalia for the reason that on the date of hearing none appeared from the side of the Assessee and the Tribunal therefore decided the case on merits and dismissed the appeal of the Assessee. For non appearance on the date of hearing it was submitted that it was on account of non receipt of notice of hearing. In the application it has been further submitted that against the order of CIT(A) dated 16.11.2010 against which the appeal was preferred by Assessee before Hon'ble ITAT, Assessee had moved an application u/s. 154 dated 19.02.2011 before the same ld. CIT(A) who has rectified the order u/s. 54 dated 03.03.2011 and 2 M.A No 189/A/14 (in ITA No 77/A/11) . A.Y. 2007-08

against the aforesaid rectified order Department had preferred appeal vide ITA No. 1396/AHD/2011 and the aforesaid appeal of Revenue is yet to be adjudicated. It was therefore submitted that the matter be recalled in view of the provision of Section 254(2)of the Act. The ld. D.R. on the other hand opposed the M.A. and submitted that the order of the Tribunal was passed on merits and the Tribunal has no power to review its order.

2. We have heard the rival submissions and perused the material on record. We find that on the date of hearing i.e. on 09.06.2014 none appeared on behalf of Assessee and therefore the appeal of Assessee was decided on merits. It is Assessee's submission that the notice of hearing was not received and therefore none could appear on the date of hearing. From the copy of notices available on record, it is seen that the notices were served through RPAD at the address given by the Assessee in the Form No. 36 filed by the Assessee. The acknowledgement of the RPADs as available from the record also reveals that the notices were indeed served because the acknowledgement bears the signature and the mobile number of the recipient of the notice. We further find that the order of the Tribunal against which the present M.A has been filed was also sent to the same address at which the notices were sent and therefore the submission of Assessee of non receipt of notice does not carry any force more so when the order against which the M.A. has been filed was also sent at the same address. With respect to prayer of the Assessee to recall the impugned order, we find that the order was passed on merits. Rule 24 of the Income Tax (Appellate Tribunal) Rules, 1963 also provides that when on the date of hearing, the appellant does not appear either in person nor through an authorized representative, the Tribunal may dispose of the appeal on merits after hearing the respondent. Further, when 3 M.A No 189/A/14 (in ITA No 77/A/11) . A.Y. 2007-08

no sufficient cause for non appearance at the time of hearing of appeal has been brought out by the Assessee as noted hereinabove, and therefore we are of the view that proviso to Rule 24 of the I.T. (Appellate Tribunal) Rules, 1963 would also not be applicable in the present case and thus we find no reason to recall the order of Tribunal dated 07/11/2014.

3. In the result, the Miscellaneous Application is dismissed.

Order pronounced in Open Court on 19 - 02 - 2015.

Sd/- Sd/- (SHAILENDRA Kr. YADAV) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad. Rajesh

Copy of the Order forwarded to:- 1. The Appellant. 2. The Respondent. 3. The CIT (Appeals) - 4. The CIT concerned. 5. The DR., ITAT, Ahmedabad. 6. Guard File. By ORDER

Deputy/Asstt.Registrar ITAT,Ahmedabad