Wpc/5222/2018 Of Ms Usha Martin Ltd v. The Assistant Commissioner Of Income Tax

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(T) No.5222 of 2018 ---- M/s. Usha Martin Ltd., (earlier known as Usha Beltron Ltd) 2A, Shakespare Sarani, Kolkata-700071 through its Assistant Vice President Nand Kishore Patodia, son of Late Ramdeo Patodia, aged about 67 years resident of Deputy –Para, P.O. and P.S. Lalpur, Town and District Ranchi. … …Petitioner Versus The Assistant Commissioner of Income Tax, Circle-3, Ranchi, Central ––Revenue Building, Main Road, Ranchi, P.O.-GPO & PS Chutia, District Ranchi ……Respondent ----- CORAM : HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE B.B.MANGALMURTI ----- For the Petitioner : Mr. M.S.Mittal, Sr. Advocate For the respondent : Mr. Deepak Roshan, Advocate : Mr. Deepak Roshan, Advocate ----- Order No. 03 : Dated27[th] November, 2018 1. The instant writ petition is directed against a decision of the Income Tax Appellate Tribunal, Ranchi Bench, Ranchi decided on 31[st] May, 2018. The Tribunal in the said decision considered two apperals, one filed by the Revenue and the other by the assessee. The assessee’s appeal was partly allowed and the Revenue’s appeal against the order of the Commissioner (Appeals) was dismissed. 2. The assessment year involved is 2007-08 and the order of the Commissioner was issued on 27[th] January, 2017. So far as the assessee/writ petitioner is concerned, the Tribunal’s decision renders them liable to the tune of Rs.14,82,34,865/- to the Income Tax Department. This appears from paragraph 17 of the writ petition. The aforesaid order was passed ex-parte. According to the writ petitioner/assessee, no information was given about fixing 30[th] May, 2018 as the date for hearing of the appeal. Decision was delivered on the very next day. As such, the assessee was not represented. 3. Mr. Roshan, learned counsel for the Revenue raises the question of maintainability of this writ petition. He has referred to Rule 24, Income-tax (Appellate Tribunal) Rules, 1963. This Rule stipulates :- “Hearing of appeal ex parte for default by the appellant. 24. Where, on the day fixed for hearing or on any other date to which the hearing may be adjourned, the appellant does not appear in person or through an authorized representative when called on for hearing, the Tribunal may dispose of the appeal on merits after hearing the respondent. Provided that where an appeal has been disposed of as provided above and the appellant appears afterwards and satisfies the Tribunal that there was sufficient cause for his non-appearance, appeal was called on for hearing, the Tribunal shall make an order setting aside the ex parte order and restoring the appeal.” 4. We find that the ground on which the present writ petition has been brought and argued before us can be dealt with by the Tribunal itself in terms of the proviso to the said Rule. 5. In such circumstances, in our view, the assessee/writ petitioner ought to approach the Tribunal first. Liberty is given to the assessee to file an application before the Tribunal in terms of proviso to Rule 24 within a period of 15 days. In the event the application is filed within the aforesaid period of 15 days, the order impugned to the extent the same has gone against the assessee, shall be kept in abeyance until the first date of hearing to be fixed by the Tribunal. The assessee shall be entitled to apply for stay of the operation of the impugned decision before the Tribunal on that date. 6. The writ petition stands disposed of in the above terms. 7. No order as to costs. (Aniruddha Bose, C.J.) (B.B.Mangalmurti, J.)