2023 (8) TMI 839 - AT - Income Tax

Tribunal grants fresh hearing opportunity after recognizing communication gap, emphasizes substantial justice

Shri Mahesh M. Pandya Versus The ITO, Ward-6, Vapi.

The Tribunal recalled its order dismissing the appeal for non-prosecution due to a communication gap between the assessee and the advocate, recognizing ... Seeking to recall the order of this Tribunal - assessee appeal dismissed in limine for want of non-prosecution - as submitted assessee has communicated to the particular advocate which was not finally appointed by him and then after he approached another advocate to plead his case before the Tribunal. also assessee did not receive the notice of hearing from the Tribunal and therefore the assessee was not aware that appeal was fixed for hearing on a particular day before the Tribunal - assessee is an agriculturist and does not know about the Income Tax Act and does not know the importance of proceeding before the Tribunal HELD THAT:- We note that because of communication gap between assessee and his advocate, as the assessee was in the process to appoint new advocate to plead his case, so the assessee’s matter was not argued. We also note that a few occasions, the assessee took adjournment, hence it is not a case that assessee is gross negligent on his part. We agree with the contention of the Ld. Counsel that there was a reasonable cause for assessee’s failure to appear before the ITAT. We note that substantial justice should not be denied on account of technicality, therefore considering the facts of the assessee’s case, we recall the order of the Tribunal dated 20.09.2022 for fresh hearing. Issues involved: Recall of order due to non-prosecution and failure to appear before the ITAT.Recall of Order due to Non-Prosecution:The assessee sought to recall the Tribunal's order dismissing the appeal in limine for nonprosecution, stating that the order was passed ex parte without hearing the assessee. The counsel highlighted the communication gap between the assessee and the advocate, leading to the failure to argue the matter. The counsel argued that the assessee, being an agriculturist unfamiliar with the Income Tax Act, was unaware of the importance of the proceedings and could not appoint an advocate on time. It was contended that the assessee should be given another opportunity to present the case before the Tribunal.Failure to Appear before the ITAT:The Tribunal acknowledged the communication gap between the assessee and the advocate, noting that the assessee was in the process of appointing a new advocate to plead the case. It was observed that the assessee had taken adjournments on a few occasions, indicating a lack of gross negligence. Emphasizing that substantial justice should not be denied on technical grounds, the Tribunal agreed that there was a reasonable cause for the assessee's failure to appear. Consequently, the Tribunal recalled the order for fresh hearing, scheduled for a specific date in the presence of the counsel and the Departmental Representative. The Registry was directed to fix the appeal for hearing on the specified date.Separate Judgment:The Miscellaneous Application filed by the assessee was allowed, and the order was pronounced in the open court, granting the request for the recall of the order due to non-prosecution.