SHRI PANDURANG SAKPAL PROP. OF. M/S. PRATHMESH ENTERPRISES, MUMBAI V. ITO 14(1)(3), MUMBAI

ITA 1422/MUM/2011

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2293 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 04-07-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 17-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAY KUMAR SONI
• Keywords: Opportunity of being heard; Non compliance

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH, JM AND SHRI SANJAY ARORA, AM ./ I.T.A. NO. 1422 /MUM/201 1 ( / ASSESSMENT YEAR : 20 0 7 - 08 ) M R.PANDURANG SAKPAL, PROP OF M/S PRATHMESH ENTERPRISES, 439, HARI NIWA S , 2/17, JSS ROAD, GIRGAUM, MUMBAI - 400002 / VS. INCOME TAX OFFICER 14(1)(3), EARNEST HOU S E, 2 ND FLOOR, NARIMAN POINT, MUMBAI - 400021 ./ T AN : ACAPS6499M / ASSESSEE BY NONE / REVENUE BY SHRI VIJAY KUMAR SONI / DATE OF HEARING : 04/07/201 6 / DATE OF PRONOUNCEMENT : 03 /0 8 /2016 / O R D E R PER BENCH : THIS IS AN APPEAL BY THE ASSESSEE CHALLENGING THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS) - 25 , MUMBAI DATED 3.11.2010 FOR THE ASSESSMENT YEAR 2007 - 08, WHEREUNDER THE LD.CIT(A) DISMISSED THE APPEAL ON THE GROUND OF DELAY IN FILIN G THE APPEAL AND NON COMPLIANCE WITH RULE 45 R.W.S.249 OF THE INCOME TAX ACT, 1961. 2. A PERUSAL OF THE APPELLATE ORDER CLEARLY SHOWS THAT THE ORDER WAS PASSED EX - PARTE . IT WAS RECORDED THAT THE ASSESSEE FAILED TO FILE THE APPEAL IN 2 1422 /MUM/ 201 1 CONFORMITY WITH RULE 45 R.W.S.249 OF THE ACT AND AS A MATTER OF FACT THERE IS A DELAY OF 10 DAYS IN FILING THE APPEAL. RE CORDING THAT THE ASSESSEE WAS NON - COOPERATIVE WITH THE AUTHORITY IN PROCEEDING WITH THE MATTER AND SINCE THE APPEAL CANNOT BE E NTERTAINED FOR NON - COMPLIANCE WITH THE STATUTORY REQUIREMENTS , T HE LD. CIT(A) DISMISSED THE APPEAL WHILE CONFIRMING THE ORDER OF ASSESSMENT. 3 . HEARD THE LD.DR AND THE LD.DR FAIRLY CONCEDED THAT THE IMPUGNED ORDER IS EX - PARTE ORDER AND THE DELAY WAS ONLY OF 10 DAYS. 4 . G RI EVANCE OF THE ASSESSEE WAS BROUGHT TO THE NOTICE OF LD.CIT(A) BY WAY OF APPEAL, THE ASSESSEES STAND WAS THAT THE ASSESSEE WAS OUT OF STATION FOR PERFORMING SOME POOJAS/RELIGIOUS RITUALS FOR HIS LATE FATHER AND WENT FOR PILGRIMAGE AS PER THE CUSTOM AND REL IGIOUS REQUIREMENTS OF THE FAMILY , THEREFORE, THE ABSENCE WAS NOT INTENTIONAL AND WAS ONLY DUE TO THE REASONS BEYOND HIS CONTROL. IT IS THE SETTLED PRINCIPLE OF LAW THAT WHEN THE TECHNICALITIES ARE AGAINST THE POSSIBILITY OF DELIVERY OF SUBSTANTIAL JU STICE, THE FORUM MUST GIVE WAY TO THE LITIGANT. THE HIGHE ST THAT (WOULD) HAPPEN BY CONDONING THE DELAY IS THAT A CAUSE WILL BE DECIDED ON MERITS WHICH IS IN THE INTEREST OF JUSTICE. SO ALSO AT THE SAME TIME IT IS NECESSARY TO SECURE DUE DILIGENCE FROM THE ASSESSEE IN THE CONDUCT OF THE MATTER BEFORE THE LD.CIT(A) BY COMPLYING WITH RULE 45 OF THE RULES, R.W.S.269 OF THE ACT . 3 1422 /MUM/ 201 1 5. WITH THIS VIEW OF THE MATTER, WE SET ASIDE THE ORDER DATED. 3.11.2010 OF THE LD. CIT(A) AND RESTORE THE SAME TO HIS FILE FO R FRESH DISPOSAL BY GIVING FAIR AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND ALLOWING HIM TO COMPLY WITH THE PROVISIONS OF RULE 45 R.W.S.269 OF THE ACT. WE ALSO MAKE IT CLEAR THAT THIS IS A LAST OPPORTUNITY IN FURTHERANCE OF INTEREST O F JUSTICE. 6 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 03 RD AUGUST , 201 6 SD/ - SD/ - ( SANJAY ARORA) ( MAHAVIR SINGH ) / ACCOUNTANT MEMBER / J UDICIAL MEMBER MUMBAI ; DATED : 03 RD AUGUST , 2016 PS: AG(ON TOUR) / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI