Mr. D.k. Dwibedi, Advocate v. Principal Chief Commissioner Of Income Tax And Others

IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 4181 of 2018 Om Prakash Jha …. Petitioner Mr. D.K. Dwibedi, Advocate -versus- Principal Chief Commissioner of Income Tax and others …. Opposite Parties Mr. T. Satapathy, Senior Standing Counsel (Revenue) CORAM: JUSTICE ARINDAM SINHA JUSTICE GOURISHANKAR SATAPATHY Order No.5. ORDER 31.07.2023 1. Mr. Dwibedi, learned advocate appears on behalf of petitioner-assessee and submits, impugned is appellate order dated 25[th]September, 2017, dismissing his client’s appeal. His client is a Non-Resident Indian (NRI). All he wants is an opportunity of hearing, when he had filed the appeal but admittedly did not appear. He submits, the Commissioner relied upon, inter alia, decision dated 3[rd]September, 2008 of the Income Tax Appellate Tribunal (ITAT), Cuttack Bench in M/s. Balaji Builders v. ITO [ITA no.79 (CTK)/2007]. Observation of the Cuttack Bench was quoted in impugned order and erroneously relied upon. He submits, power of the Tribunal to deal with appeal under section 254 in Income Tax Act, 1961 is different from the power under section 251, of the Commissioner. 2. Mr. Satapathy, learned advocate, Senior Standing Counsel appears on behalf of revenue. He points out from impugned order that sufficient opportunity was given. 3. There is no dispute that petitioner was not vigilant. The only thing that can be said for him is that he preferred the appeal. He is before the writ Court. He wants one further opportunity. 4. In facts and circumstances recorded above we, for purpose of giving one last opportunity to petitioner to prosecute his appeal, restore it. The restoration is not to be taken as on finding of illegality or material irregularity in impugned order. We have interfered on grounds of equity. 5. Petitioner will produce this order before the Commissioner (Appeal). Whatever date the Commissioner (Appeal) fixes for giving this one final opportunity to him, petitioner must avail. His omission will automatically restore impugned order. 6. The writ petition is disposed of. (Arindam Sinha) Judge (G. Satapathy) Judge Signature Not Verified Digitally SignedJyoti/RKSSigned by: JYOTIPRAVA BHOLReason: AuthenticationLocation: HIGH COURT OF ORISSADate: 31-Jul-2023 19:13:37