ASHOK ARJUNDAS MAKHIJANI vs. DEPUTY COMMISSIONER OF INCOME TAX

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TAXAP/503/2018HC GujaratGJHC24021257201813 June 2018Author: HONOURABLE MR. JUSTICE AKIL KURESHI,HONOURABLE MR. JUSTICE B.N. KARIA2 pages

AI SummaryRemanded

What did the High Court hold?

The High Court, considering the representation made by the assessee's counsel, decided to grant a last opportunity to the appellant to appear and argue their case before the ITAT. The Court set aside the impugned order dated September 27, 2017, which was the ex parte dismissal order by the ITAT. The appeal was restored before the ITAT for disposal in accordance with the law. The assessee was directed to deposit a cost of Rs. 5,000/= with the Income-tax authorities. The High Court did not decide the merits of the original penalty appeal.

What were the facts?

The assessee, Ashok Arjundas Makhijani, challenged a penalty order passed by the Assessing Officer and confirmed by the CIT(A). The Income Tax Appellate Tribunal (ITAT) had fixed the hearing for September 22, 2017. On that date, neither the assessee nor their representative appeared before the ITAT, nor was an adjournment application filed. Consequently, the ITAT proceeded ex parte and dismissed the appeal through a detailed order. The assessee's counsel submitted that this was the first instance of absence before the ITAT and that the assessee was not a chronic defaulter.

What were the issues?

1. Whether the ITAT was justified in dismissing the appeal ex parte when the assessee's representative failed to appear on the hearing date, and if the ITAT should have considered setting aside the ex parte order. (Mixed question of law and fact) Assessee's Contention: The assessee argued that their Chartered Accountant was engaged to represent them and that the hearing date was conveyed. The absence was an unfortunate occurrence, and this was the first time the assessee had remained absent before the Tribunal. They contended that the ex parte dismissal was harsh given these circumstances. Revenue's Contention: The judgment does not record any specific contentions made by the revenue before the High Court regarding the ex parte dismissal.

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances

C/TAXAP/503/2018 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/TAX APPEAL No. 503 of 2018 ============================================================= ASHOK ARJUNDAS MAKHIJANI Versus DEPUTY COMMISSIONER OF INCOME TAX ============================================================= Appearance : Mr TEJ SHAH, Advocate for the PETITIONER Mr VARUN K PATEL, Advocate for the RESPONDENT ============================================================= CORAM: HONOURABLE Mr. JUSTICE AKIL KURESHI and HONOURABLE Mr. JUSTICE B.N. KARIA 13th June 2018 ORAL ORDER (PER : HONOURABLE Mr. JUSTICE AKIL KURESHI) Considering the nature of issue, let there be a notice for final disposal, returnable today itself. Learned advocate Mr. Varun K Patel, who is a panel counsel for the Income-tax Department and represents Baroda Circle, appears at our request on advance copy. Appellant had challenged penalty order passed by the Assessing Officer and confirmed by the CIT [A]. Before the Income Tax Appellate Tribunal, hearing of the appeal was fixed on 22nd September 2017. The record shows that on such date, neither the appellant nor his representative appeared before the Tribunal, nor any application for adjournment was filed. The Tribunal, therefore, proceeded ex parte and by a detailed order, dismissed the appeal. Page 1 of 2

Counsel for the appellant submitted that the appellant had engaged a Chartered Accountant to represent him and also conveyed the date of hearing fixed by the Tribunal to his legal representative. Unfortunately, he could not appear which led to appeal being heard ex parte. Counsel submitted that this is the first instance where the appellant had remained absent before the Tribunal and this is not a case where the appellant was a chronic defaulter.

Considering the representation made before us, we are inclined to give last opportunity to the appellant to appear and argue his case before the Tribunal. For such purpose, we set-aside the impugned order dated 27th September 2017 and restore the appeal before the Tribunal, for disposal in accordance with law.

The appellant shall deposit cost of Rs. 5,000/= with the Income-tax authorities.

Tax Appeal stands disposed of accordingly. [Akil Kureshi, J.] [B.N Karia, J.] Prakash

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