9911796707
TMI Blog2012 (9) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Tribunal while dismissing the Misc. Application filed by the assessee has not passed any speaking order and has dismissed it on the ground for non-prosecution only. there was a reasonable cause, therefore, it is held that the mistake of the counsel was bonafide and the applicant cannot be made to suffer for the mistake of the assessee’s counsel and accordingly the ex parte order for non-prosecution passed by the Tribunal is recalled - Decided in favor of assessee - M.A. No. 433/Mum/2011, ITA No. 6376/M/2007 - - - Dated:- 11-7-2012 - SHRI DINESH KUMAR AGARWAL AND SHRI B. RAMAKOTAIAH, JJ. Applicant by : Shri Pankaj R. Toprani Respondent by : Shri D.S. Sunder Singh ORDER PER DINESH KUMAR AGARWAL (JM) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the other hand, the ld. D.R. opposed the recalling of the order passed by the Tribunal. 4. We have carefully considered the submissions of the rival parties and perused the material available on record. We find that there is no dispute that in the Misc. Application dtd. 18th May, 2011, the assessee inter alia pointed out that the Tribunal has omitted to deal with ground No. 3 to 7 taken in the appeal filed by the assessee. We further find that the said Misc. Application was listed for hearing for 22nd July, 2011. Since there was no compliance by the assessee on the date of hearing i.e. 22nd July, 2011, the Tribunal has passed the following order:- ORDER Per T.R. SOOD, AM: In this case notice of hearing was issued throug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should not subjected to suffer on account of mistake on my part. Therefore, if the order of dismissal is not recalled, the Applicant would be put to great financial loss and considerable hardships. From the reading of the above, we observe that there is no dispute that the applicant had engaged a counsel and was, therefore, justified in presuming that the counsel would attend the case. However, due to certain mistake in noting the date of hearing in the diary maintained by the assessee s counsel, he could not attend on the date of hearing. In the absence of any contrary material placed on record by the Revenue, we are of the view that the lapse on the part of the assessee s counsel appears to be bonafide. 5. In Mahaveerprasad Jain v. CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr. A. K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. May be we do not know, he is better informed in this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter, which may discourage such a tendency, would it not bring justice delivery system into disrepute ? What is the fault of the party who, having done everything in his power and expected of him, has to suffer because of the default of his advocate ? If we reject this appeal, as Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , that Form No. 11A had been duly signed by all the partners in time and had been handed over to them for filing the same with the I.T. Department but it was not filed in time due to oversight; (ii) that the original firm had been granted registration for the earlier years and this firm had been granted registration for subsequent years except for the disputed assessment year; (iii) that it was not the case of the Department that the firm was either bogus or had in fact no legal existence; (iv) that the firm had produced before the I.T. authorities a letter from a bank that one of the persons who became a partner under the partnership deed dated September, 1975, was operating the account of the firm since May 17, 1976, covering the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, subsequent Misc. Application filed by the assessee is not maintainable. However, in the penultimate para the Tribunal has also considered the reasonable cause for non-appearance of the assessee and rejected the same on the ground that there is no cooperation from the assessee s side and hence it cannot constitute any cause to recall the order. 10. However, in the case before us, there is no dispute that the Tribunal while dismissing the Misc. Application filed by the assessee has not passed any speaking order and has dismissed the assessee s Misc. Application on the ground for non-prosecution only. Thus there is no speaking order passed by the Tribunal. Now the assessee has proved that lapse on the part of the counsel for the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
