ASHOK ARJUNDAS MAKHIJANI vs. DEPUTY COMMISSIONER OF INCOME TAX

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TAXAP/501/2018HC GujaratGJHC24021267201813 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 assessee's submission that his absence was a first-time occurrence and not indicative of chronic default, decided to grant a last opportunity to the assessee to argue his case before the ITAT. The Court set aside the ITAT's ex parte order dated September 27, 2017, and restored the appeal to the ITAT's file for disposal in accordance with law. As a condition for this relief, 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, had challenged a penalty order passed by the Assessing Officer and confirmed by the CIT(A). His appeal before the Income Tax Appellate Tribunal (ITAT) was scheduled for hearing on September 22, 2017. On that date, neither the assessee nor his representative appeared before the ITAT, and no adjournment application was filed. Consequently, the ITAT proceeded ex parte and dismissed the appeal through a detailed order dated September 27, 2017. The assessee, in his appeal before the High Court, stated that this was the first instance of his absence and that he was not a chronic defaulter.

What were the issues?

1. Whether the ITAT was justified in dismissing the appeal ex parte without considering the merits of the case, given the assessee's absence on the hearing date? (Question of law and fact, concerning principles of natural justice and procedural fairness). Assessee's Contention: The assessee argued that his absence was an isolated incident and not due to chronic default. He had engaged a Chartered Accountant and conveyed the hearing date, but the representative unfortunately could not appear. The assessee sought an opportunity to present his case before the Tribunal. Revenue's Contention: The judgment does not record any specific contentions from the revenue regarding the ex parte dismissal. However, the revenue was represented before the High Court.

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances

C/TAXAP/501/2018 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/TAX APPEAL No. 501 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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