MAGMA INDUSTRIES, MUMBAI V. ITO - 25(2)(2) NOW ITO 32(2)(3), MUMBAI

ITA 5291/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0808 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-05-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 26-08-2016
• Court: TRIBUNAL
• Department Lawyers: A K KARDA M
• Assessee Lawyers: S C PATNI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM ITA NO. 5291 / MUM/20 1 6 ( ASSESSMENT YEAR : 2010 - 11 ) M/S. MAGMA INDUSTRIES 804, SHREE MADHUBAN CHS LTD., 51 ST ROAD, TPS - 3, BORIVALI (W), MUMBAI 400 092 VS. ITO 25 (2 )(2) NOW. ITO 32(2)(3), MUMBAI 400 051 PAN/GIR NO. AAGFM4655F APPELLANT ) .. RESPONDENT ) ASSESSEE BY SHRI S.C.PATNI REVENUE BY SHRI A.K.KARDAM DATE OF HEARING 09 / 05 /201 7 DATE OF PRONOUNCEME NT 09 / 05 /201 7 / O R D E R PER R.C.SHARMA (A.M) : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE EX - PARTE ORDER OF CIT(A) - 44, MUMBAI DATED 21/06/2016 FOR THE A.Y.2010 - 11 IN THE MATTER OF ORDER PASSED U/S.2010 - 11. 2. IT WAS ARGUED BY LEARNED AR THAT THE LEAR NED COMMISSIONER OF INCOME TAX, APPEALS - 44, MUMBAI ERRED IN PASSING THE EX-PARTE ORDER BY HOLDING THAT ASSESSEE HAS NOT ATTENDED THE HEARINGS BEFORE HIM WHICH IS ABSOLUTELY INCORRECT AS THERE ARE ENOUGH DOCUMENTARY EVIDENCES AVAILABLE WITH THE ASSESSEE A ND ALSO AS PER ORDER SHEET ENTRIES BEFORE THE LEARNED CIT(A), THAT THE ASSESSEE HAS ATTENDED HEARINGS ON 24/05/2016 AND ON 10 / 0 6/2016 BUT AS THE LEARNED CIT( A ) WAS BUSY, THE CASE WAS ITA NO. 5291/MUM/2016 M/S. MAGMA INDUSTRIEWS 2 ADJOURNED TO 17/06/2016 AND THE NOTICE OF FIRST HEARING ON 21/04/2016 WAS RECEIVED ON SAME DAY. 3. LEARNED AR HAS DRAWN OUR ATTENTION TO THE ADJOURNMENT PETITION FILED BEFORE THE CIT(A) ON 10/06/2016 REQUESTING THAT SINCE HE WAS SUFFERING FROM HIGH FEVER, ADJOURNMENT SHOULD BE GRANTED. HOWEVER, THE CIT(A) DID NOT AGREE FOR ANY ADJOURNMENT AND PASSED EX - PARTE ORDER. 4. ON THE OTHER HAND, LEARNED DR SUPPORTED THE ORDER OF THE LOWER AUTHORITIES. 5 . I HAVE CONSIDERED RIVAL CONTENTIONS AND FOUND FROM RECORD THAT THE LEARNED COMMISSIONER OF INCOME TAX, APPEALS - 44, MUMBAI HAS PASSED THE ORD ER EX - PARTE DESPITE THE FACT THAT THE NOTICE OF FIRST HEARING WAS RECEIVED ON THE DATE OF HEARING ITSELF I.E. 21/04/2016 SO THE HEARING WAS ADJOURNED TO 24/05/2016. ON 24/05/2016, THE LEARNED CIT(A) WAS BUSY AND THE HEARING WAS ADJOURNED FROM HIS EN D TO 10/ 06/2016. ON 10/ 06/2016, THE ASSESSEE 'S AR WAS SUFFERING FROM HIGH FEVER. A LETTER STATING THIS FACT WAS FILED ON 10106/2016 AND HEARING WAS ADJOURNED TO 17/06/2016. THE ASSESSEES AR COULD NOT RECOVER FROM HIS HIGH FEVER BEFORE 17/06/2016 AND THERE FORE COULD NOT ATTEND THE HEARING ON 17/06/2016. AFTER GETTING WELL, THE AR ATTENDED THE OFFICE OF LEARNED CIT (A) ON 20 / 06/2016 BUT HE WAS INFORMED THAT THE ORDER HAS BEEN PASSED EX - PARTE. THE SAID EX - PARTE ORDER IS BAD IN LAW AS THE CIRCUMSTANCES IN WHIC H THE NON ATTENDANCE RESULTED WERE BEYOND THE CONTROL OF THE ASSESSEE. ITA NO. 5291/MUM/2016 M/S. MAGMA INDUSTRIEWS 3 6. I FOUND THAT AN ADJOURNMENT WAS SOUGHT BY THE AR OF THE ASSESSEE ON 10/06/2016. I ALSO FOUND THAT THE LEARNED CIT (APPEALS) HAS NOT ADJUDICATED ON THE GROUNDS OF APPEAL RAISED BEFORE HIM AND SIMPLY PASSED THE EX - PARTE ORDER FOR THE REA SON OF NON ATTENDANCE. THE NON- ATTENDANCE BY THE ASSESSEE WAS ONLY ON ONE OCCASION I.E. 17/06/2016 AS THE AR HAD NOT RECOVERED FROM HIGH FEV ER. 7. IN THE SUBSTANTIAL INTEREST OF JUSTICE, I SET ASIDE THE EX - PARTE ORDER PASSED BY THE CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF THE CIT(A) FOR DECIDING AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. I ALSO DIRECT THE ASSESSEE TO APPEAR BEFORE CIT(A) WITHIN 60 DAYS FROM THE RECEIPT OF THIS ORDER. IN CASE OF ANY FAILURE BY ASSESSEE, CIT(A) IS EMPOWERED TO PASS ORDER AFTER CONSIDERING MATERIAL PLACED ON RECORD. I DIRECT ACCORDINGLY. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED IN PART FOR STATISTICAL PURPOSES. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 09 / 05 /2017 S D/ - ( R.C.SHARMA ) ACCOUNTANT MEMBER MUMBAI ; DATED 15 / 05 /201 7 KARUNA SR. PS COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//