Case Law Details

Case Name : RNB Carbide & Ferro Alloys Pvt. Ltd. Vs ITO (ITAT Guwahati)
Appeal Number : MA Nos.16 to 18/Gau/2018
Date of Judgement/Order : 24/06/2020
Related Assessment Year : 2009-10 to 2011-12
Courts : All ITAT (7314) ITAT Guwahati (9)

RNB Carbide & Ferro Alloys Pvt. Ltd. Vs ITO (ITAT Guwahati)

In the present case, the Tribunal had fixed the case for hearing on 19.02.2018 and at that time one Shri Brojesh Sharma, AR of the assessee had filed adjournment petition and requested to fix the case on 21.02.2018. However, on 21.02.2018, Shri Somnath Ghosh, Advocate appeared and again sought for adjournment. The Tribunal was of the opinion that since no Vakalatnama had been filed in the name of Shri Somnath Ghosh, the adjournment application was rejected and the Bench proceeded to dispose of the appeals after hearing the Ld. DR. The assessee is aggrieved by this action of the Tribunal since according to it, they had authorized Shri Somnath Ghosh, Advocate to appear and plead the appeals before the Tribunal.

ITAT state that, the Misc. Application which has been verified by Shri Varun More, Director of the assessee company that though the assessee had infact authorized Shri Somnath Ghosh to appear on behalf of the assessee. However, since the copy of the appeal could be given only a day before the case was listed for hearing, the Advocate could not be briefed by the Director of the assessee company because he was recovering from viral fever and also was infected with Pharyngitis. Prescription of the doctor has also been enclosed along with the adjournment application. So, according to ITAT, there was reasonable cause for the assessee to seek adjournment. However, ITAT note that the assessee company had authenticated that Shri Somnath Ghosh, Advocate is their AR and, therefore, we are of the opinion that due to confusion created because of non-filing of Vakalatnama had led to the impugned order being passed by the Tribunal. In the light of the facts and circumstances discussed above, ITAT are of the opinion that there has been a violation of the principle of Natural Justice and, since assessee had not been effectively heard/not-heard before the disposal of the appeal, ITAT recall the impugned order of the Tribunal and the Registry is directed to fix all the aforementioned appeals that are restored in due course. Therefore, all the Misc. Applications of the assessee are allowed.

FULL TEXT OF THE ITAT JUDGEMENT

All these Misc. Applications (MAs) preferred by the assessee are against the order of this Tribunal dated 22.02.2018 for AYs 2009-10 to 2011-12 wherein it has been pointed out that the Tribunal has disposed off the appeal without the assistance of the Ld. AR of the assessee though assessee had moved an application for adjournment. The tribunal we note has observed that none appeared for the assessee and the Tribunal at para 2 has observed as under:

“2. These appeals were fixed for hearing on 19.2.2018, when one Sri Brajesh Sharma, claiming as Ld. AR of the assessee had filed adjournment petition and requested time on 21.2.2018 to argue the appeals. The request of Ld. AR to adjourn the appeals was granted and appeals were fixed for hearing for 21.2.2018. On 21.2.2018 an application for adjournment was received from another person Shri Somnath Ghosh claiming to be Ld. AR of the Assessee. There is no Vakalatnama in the name of Shri Somnath Ghosh filed before the Tribunal. Therefore, the adjournment application is rejected and the Bench proceeded to dispose the appeals filed by the assessee on the basis of submission of Ld. DR and materials available on record.”

2. Thereafter, the Tribunal dismissed all the appeals preferred by the assessee. Against the aforesaid action of the Tribunal, the assessee company has preferred all these MAs. On perusal of the Misc. Applications it reveals that on the date of hearing on 21.02.2018, the assessee had filed adjournment application through Shri Somnath Ghosh, Advocate who was duly authorized by it and the adjournment was sought for the reason stated below:

“I am duly authorized by the aforesaid appellant to represent them in the instant appeals, the hearing of which are posted on the 21st day of February, 2018. In this respect, I beg to submit that I was recuperating from viral fever and now inflicted with Pharyngitis (prescription enclosed). In such scenario, I am not in a position to appear before your Honours to agitate the issues raised in the appeals on that day. In the context of such compelling circumstances, an adjournment of hearing of the appellate proceedings may kindly be granted. It is most respectfully prayed that your Honour may be graciously kind enough to afford me an opportunity for representing the appellant in the instant appeals in the next sitting and oblige.”

3. We note that this Misc. application has been verified by Shri Varun More, who is a Director of the assessee company who has stated that he had authorized Shri Somnath Ghosh to appear before the Tribunal on 21.02.2018 and instructed to seek adjournment, since Shri Somnath Ghosh was newly engaged as AR and so he needed to be briefed about the case/appeal. It was also admitted by Shri Varun More, director of the assessee company that it omitted to file before the Tribunal the Vakalatnama of Shri Somnath Ghosh and the Tribunal citing this technical omission did not accept the adjournment application moved by the assessee. Therefore, it was prayed that in the interest of justice the impugned order passed by the Tribunal without hearing the assessee should be re called.

4. We have heard the Ld. DR and have gone through the records. We note that the Tribunal had fixed the case for hearing on 19.02.2018 and at that time one Shri Brojesh Sharma, AR of the assessee had filed adjournment petition and requested to fix the case on 21.02.2018. However, on 21.02.2018, Shri Somnath Ghosh, Advocate appeared and again sought for adjournment. The Tribunal was of the opinion that since no Vakalatnama had been filed in the name of Shri Somnath Ghosh, the adjournment application was rejected and the Bench proceeded to dispose of the appeals after hearing the Ld. DR. The assessee is aggrieved by this action of the Tribunal since according to it, they had authorized Shri Somnath Ghosh, Advocate to appear and plead the appeals before the Tribunal. We note from a perusal of the Misc. Application which has been verified by Shri Varun More, Director of the assessee company that though the assessee had infact authorized Shri Somnath Ghosh to appear on behalf of the assessee. However, since the copy of the appeal could be given only a day before the case was listed for hearing, the Advocate could not be briefed by the Director of the assessee company because he was recovering from viral fever and also was infected with Pharyngitis. Prescription of the doctor has also been enclosed along with the adjournment application. So, according to us, there was reasonable cause for the assessee to seek adjournment. However, in the impugned order the Tribunal taking note that no Vakalatnama in the name of Shri Somnath Ghosh was filed before it, the Tribunal took a view that Shri Somnath Ghosh, Advocate is not the AR of the assessee and, therefore, it proceeded ex parte qua the assessee. However, we note that the assessee company had authenticated that Shri Somnath Ghosh, Advocate is their AR and, therefore, we are of the opinion that due to confusion created because of non-filing of Vakalatnama had led to the impugned order being passed by the Tribunal. In the light of the facts and circumstances discussed above, we are of the opinion that there has been a violation of the principle of Natural Justice and, according to us, since assessee had not been effectively heard/not-heard before the disposal of the appeal, we recall the impugned order of the Tribunal and the Registry is directed to fix all the aforementioned appeals that are restored in due course. Therefore, all the Misc. Applications of the assessee are allowed.

5. In the result, all the Misc. applications of assessee are allowed.

Order is pronounced in the open court on 24 June, 2020

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