Sh Ratan Chand Lodha, Jaipur vs Assessee

Jh vkj-ih-rksykuh] U;kf;d lnL; ,oa Jh Vh-vkj-ehuk] ys[kk lnL; ds le{k BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM

M.A. No. 22/JP/2015 (Arising out of ITA No. 1314/JP/2008 & C.O. No. 142/JP/2008) Asstt. Year-2005-06

Rajesh Lodha cuke Income Tax Officer L/R- Shri Ratan Chand Lodha Vs. Ward (1), Jaipur. (Deceased), R/o- F-164A, Suresh Marg, Bagaria Bhawan, C-Scheme, Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No. AARPL 0857 F vihykFkhZ@Appellant izR;FkhZ@Respondent

fu/kZkfjrh dh vksj ls@ Assessee by : Shri Madhukar Garg, (CA) jktLo dh vksj ls@ Revenue by : Mrs. Neena Jeph (JCIT)

lquokbZ dh rkjh[k@ Date of Hearing : 22/05/2015 ?kks"k.kk dh rkjh[k@ Date of Pronouncement : 22/05/2015

vkns'k@ ORDER

PER: T.R. MEENA, A.M.

The assessee has filed this Miscellaneous Application arising out of the

order dtd. 12/12/2014 of this Bench in ITA/JP/2008 & C.O. 142/JP/2008. 2 M.A. No. 22/JP/2015_

Ratan Chand Lodha Vs. ITO

2. Brief facts are that during the pendency of assessee's appeal before the

ld CIT(A), the assessee Shri Ratan Chand Lodha expired on 26/1/2008. The

assessee brought this fact to the notice of the ld CIT(A) by filing an additional

ground to implead the legal heir Shri Rajesh Lodha, son of the assessee. The

ld CIT(A), though, mentioned this fact in his order, however by mistake, the

name of the legal representative could not be incorporated in the cause title of

his order. Both the revenue and assessee came up in appeal and C.O. before

the ITAT wherein also following ld. CIT(A) order the name of Shri Ratan

Chand Lodha was mentioned in the respective Memos. Going by the appeal

and CO memo, the ITAT disposed off them on merits by dismissing the

revenue's appeal and partly allowing the assessee's C.O. vide order dated

30/1/2009.

3. Aggrieved, the revenue preferred appeal before the Hon'ble Rajasthan

High Court, which by noticing this mistake vide order dated 02/3/2012 passed

the following order:-

"Remedy is available to approach the ITAT as well as CIT(A) for declaring the orders to be nullity. Thus, these appeals, filed against a dead person, are incompetent.

With the aforesaid liberty, the appeals are disposed of."

3 M.A. No. 22/JP/2015_ Ratan Chand Lodha Vs. ITO

Consequent thereupon, the revenue preferred M.A. before the ITAT

bearing No. 35/JP/2012 requesting to rectify the ITAT order in consonance

with the Hon'ble High Court's direction.

4. Allowing revenue's M.A. for this rectification, vide order dated

28/8/2014, the ITAT recalled the impugned order. After recalling the order, it

was finally heard on 27/10/2014 in which assessee was not present; revenue's

appeal was allowed and assessee's C.O was dismissed. Due to inadvertence on

the part of the registry name of the legal heir remained to be substituted on

the file docket and memos, consequently the impugned order again mentioned

the name of deceased only.

5. Now the assessee has filed the present M.A. stating as under:-

"After the Miscellaneous Application has been allowed it seems that the case was fixed for hearing for 27/10/2014 and the appeal has been decided mentioning that the assessee was not represented (notice returned unserved).

In this connection, it is to inform you that the address which has been mentioned in the order of the Hon'ble Bench is correct and in the past notices issued at the said address were duly received by me. I am herewith enclosing Photostat copy of envelop sent by registered AD informing about the date of hearing for 20/06/2014 and 25/07/2014. The envelop contains the same address which has been mentioned in 4 M.A. No. 22/JP/2015_ Ratan Chand Lodha Vs. ITO

the order of the Hon'ble Bench and the same were duly received at the said address.

Further, I was earlier being represented by Shri N.C. Dhadda who expired on 30/11/2013 and his office was closed after his death. If any notice was sent to his address the same would have been returned as the office had been closed due to death of Shri Dhadda.

In view of the finding of the Hon'ble Rajasthan High Court it is apparent that the order passed in the name of Shri Ratan Chand Lodha, a dead person is required to be recalled and appeal is to be decided after bringing the legal representative on record.

From the above mentioned facts, it would become clear that there has been no default on my part and in view of the above mentioned facts and circumstances as well as the decision of the Jurisdictional High Court it is clear that the order passed by the Hon'ble ITAT, Jaipur Bench on 12/12/2014 cannot survive and the same deserves to be recalled and the appeal and cross objection to be decided afresh."

6. Ld. Counsel for the assessee Shri Madhukar Garg (C.A.) contends that

the notice of hearing, though, sent on proper address, it was probably not

responded due to closure of office of Shri N.C. Dhadda the counsel. Thus,

non-attendance is without any deliberate reason. The assessee has sufficient

cause in not appearing before the Hon'ble Tribunal.

7. In any case, the Hon'ble High Court's direction remained partly complied

with as the name of legal heir remained to be substituted which is caused due 5 M.A. No. 22/JP/2015_ Ratan Chand Lodha Vs. ITO

to the reason of non-attendance of the assessee. Thus, the main legal

deficiency proposed to be rectified in the ITAT order dated 12/12/2014

remains to be rectified in terms of Hon'ble Rajasthan High Court. The non

attendance of the assessee is caused by a sufficient reason, which has

resulted in an ex parte order, which results to be recalled under Rule 24 of the

ITAT Rules as well as to give correct effect to the Hon'ble High Court's

direction vide order mentioned above.

8. Ld. D.R. is heard.

9. We have heard the rival contentions of both the parties and perused the

material available on the record. We find merit in the contentions of Ld.

Counsel inasmuch as (i) non-attendance of the assessee during hearing dated

27/10/2014 which resulted in ex parte hearing deserves to be recalled as

assessee was prevented by a sufficient cause. Therefore, the impugned order

of the ITAT is recalled under Rule 24 of the ITAT Rules and (ii) The Hon'ble

High Court's direction about legal heir also needs to be implemented for which

also rectification is required which will be effected by this recall.

10. In the entirety of the facts and circumstances, we allow the M.A. filed by

the assessee by recalling the impugned order of the ITAT dated 12/12/2014. 6 M.A. No. 22/JP/2015_

Ratan Chand Lodha Vs. ITO

The registry is directed to immediately implead the name of the legal heir Shri

Rajesh Lodha as legal heir, issue a fresh notice of hearing in his name, since

the cause title of the file in his name. Accordingly, the appeal is fixed for

hearing on 03/8/2015. Date pronounced in the open court. No separate notice

of hearing will be given to the L.R. or the counsel for the assessee.

11. In the result, the Misc. Application of the assessee is allowed.

Order pronounced in the open court on 22/05/2015.

Sd/- Sd/- ¼vkj-ih-rksykuh½ ¼Vh-vkj-ehuk½ (R.P.Tolani) (T.R. Meena) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member

Tk;iqj@Jaipur fnukad@Dated:- 22nd May, 2015 *Ranjan

vkns'k dh izfrfyfi vxzsf'kr@Copy of the order forwarded to:

1. vihykFkhZ@The Appellant- Rajesh Lodha, Jaipur.

2. izR;FkhZ@ The Respondent- The ITO, Ward (1), Jaipur.

3. vk;dj vk;qDr@ CIT

4. vk;dj vk;qDr¼vihy½@The CIT(A)

5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur

6. xkMZ QkbZy@ Guard File (M.A. 22/JP/2015) vkns'kkuqlkj@ By order,

lgk;d iathdkj@Asst. Registrar