TMI Blog2021 (2) TMI 1092X X X X Extracts X X X X X X X X Extracts X X X X ..... into consideration the decision of Hon ble Jurisdictional High Court cited in the case of Dolphin Metal (India) Ltd. vs. ITO.[ 2021 (2) TMI 999 - GUJARAT HIGH COURT] we condone the delay in filing the Miscellaneous Application. Considering the above facts and findings, the Miscellaneous Application is allowed and the Registry is directed to list this case for hearing on 30th March, 2021. - M.A. No. 111/Ahd/2020 (In ITA No. 945/Ahd/2016) - - - Dated:- 24-2-2021 - Shri Rajpal Yadav, Vice President And Shri Amarjit Singh, Accountant Member For the Assessee : Shri S.N. Divatia, A.R. For the Revenue : Shri L.P. Jain, Sr. D.R. ORDER PER : AMARJIT SINGH, ACCOUNTANT MEMBER:- Vide this Miscellaneous Application, the assessee seeks to recall the order of the ITAT Ahmedabad on 20th Feb, 2018 whereby the appeal of the assessee has been dismissed for want of prosecution. The appeal of the assessee was dismissed for want of prosecution as on the date of hearing on 14th Feb, 2018 none appeared on behalf of the assessee nor any adjournment application was filed on behalf of the assessee. In the affidavit filed by the applicant it is submitted that the provision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a defaulter attaching his property. Due to all such factors, he had gone into depression and had to take treatment of Samvedana Neuro Psychiatric EEC Clinic of Gandhinagar for last two years or so. . The applicant is uneducated person coming from village and the entire tax matters were handled by intermediary who made misrepresentation and dragged him into litigation. Recently, the applicant came into contact of one Sh N. Gamadia CO CA through his well-wisher when the TRO issued summons under Rule 63 of Second Schedule for attachment recovery of outstanding demand of about RS. 65.67 lacs who made efforts to reconstruct record from Department. The applicant appeared before TRO on 22-10-2019 05-11-2019 when he came to know about the order already passed by Tribunal. Hence the CA N. Gamadia Co took out copy from website of Tribunal and the present application for restoration is being filed. Thus there is sufficient cause for condoning the delay in filing the present application. Though the order of the tribunal has been passed on 20.02.2018, this application is being made now which is within 6 months of the coming to know of this order by the applicant so that it may not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 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. 3. A perusal of the above rule would indicate that if an appeal has been disposed of ex parte, and appellant appears afterwards and satisfies the Tribunal that there was a sufficient cause for his non-appearance, his appeal is to be reinstated to the original number. The assessee has filed the present MA after 579 days of the passing of original order, which was duly served upon him. At the time of hearing on the earlier occasion, we have enquired from the ld. counsel for the assessee to demonstrate what steps has been taken by the assessee for getting recall of ex-parte judgments during the last more than two years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re no time limit has been prescribed for filing this application. The only requirement under this proviso is to demonstrate by the applicant -appellant that there was sufficient cause for his non-appearance when the appeal was called out for hearing. The applicant has stated in his application filed on 20-3-2020 the circumstances in which there could no! be appearance on the date of hearing which are not repeated here for sake of brevity but the same should be referred to. The applicant desires to bring on the said circumstances in details with evidence while dealing with the first observation made in its interim order dl 12- 2-2021 by Hon'ble Tribunal elsewhere in this reply. ii. Secondly, as regards the steps had been taken for getting recall of the ex-parte order during the last two years the applicant wants to clarify that the ex-parte order was downloaded by his newly appointed Tax consultant- CA N. Gamadia CO. The reason for prompting him to down load it from website of Tribunal were that a. the applicant received phone call from AO in connection with non-payment of taxes for this year somewhere in last week of June 2019 (this is apparent from letter addressed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m appeal filed against penalty order 21-10-2019. The applicant has pointed out in the aforesaid correspondence that there was one intermediary person who coordinated with the previous tax consultant who had remained absent/misrepresented in the tax matters and the applicant being not well educated and conversant with law, he relied upon the said persons which caused this non-appearance etc. The applicant had no dishonest or malfide intentions to avoid paying legitimate dues of the department as evident from the instalments paid so far as per Form 26AS. Therefore said sequence of events clearly demonstrate that the applicant was neither dormant nor had accepted the order passed by Tribunal. He was very much aggrieved by such ex-pane order and all the intentions to take appropriate steps but he had no sufficient papers with him to proceed with filing Misc. application for restoration. In short the totality of circumstances prove that there was sufficient cause for delay in moving the Misc. Application. iii. The applicant submits with utmost respects that the MA has not been filed just to take benefit under Vivad se Vishwas scheme because this scheme was introduce by Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the actual service of the order passed by Tribunal and its last notice of hearing etc. Therefore the service of decision on 15-3-2018 or other date may be taken after appropriate verification of records. vi. In view of above, the applicant humbly prays that this Hon'ble Tribunal may be pleased a. to condone the delay in preferring the Misc. Application of the appellant against the impugned order passed on 20-2-2018 by the Tribunal. b. To quash and set aside the or der dt. 20-2-2018 passed by Tribunal and further to restore the appeal to the file of Tribunal for fresh hearing disposal. In support of his contention, the assessee has also filed copies letter dated 1st July, 2019 issued to the Assessing Officer regarding inspection of record for assessment year 2012-13, copies of letter dated 3rd July, 2019 for rectification of application u/s. 154 and copy of notice of demand of the TRO dated 11th Sep, 2019 and copies of other various correspondence made with the Assessing Officer pertaining to recovery of demand etc. The assessee has also filed a copy of judicial pronouncement of Jurisdictional High Court in the case of Dolphin Metal (India) Ltd. through Dip ..... X X X X Extracts X X X X X X X X Extracts X X X X
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