UB OSTAN (INDIA) P. LTD, PUNE V. ITO 1(3)(4), MUMBAI

MA 02/MUM/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8806 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2012-2013
• Appeal Filed On: 04-01-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: USHA GAIKWADLD
• Assessee Lawyers: MEHUL SHAHLD
• Section: 13

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI , , BEFORE HONBLE SHRI SAKTIJIT DEY , JM AND HONBLE SHRI MAN OJ KUMAR AGGARWAL, AM (HEARING THROUGH VIDEO CONFERENCING MODE) M. A. NO. 02 / MUM/ 2021 (ARISING OUT OF ITA NO. 7039 /MUM/201 6 ) ( / ASSESSMENT YEAR: 20 1 2 - 13 ) UB OSTAN (INDIA) PRIVATE LIMITED SAHYADRI SADAN TILAK ROAD PUNE 411 030 / VS. ITO (1)(3)(4) AAYKAR BHAWAN MUMBAI 400 020 ./ ./ PAN/GIR NO. A A B C U - 2815 - K ( / APPELLANT ) : ( / RESPONDENT ) REVENUE BY : MS. USHA GAIKWAD LD.SR. DR ASSESSEE BY : SHRI MEHUL SHAH - LD. AR / DATE OF HEA RING : 30/07/2021 / DATE OF PRONOUNCEMENT : 30/07/2021 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. BY WAY OF THIS MISCELLANEOUS APPLICATION, THE ASSESSEE SEEKS RECALL OF EX - PARTE ORDER PASSED BY TRIBUNAL IN CAPTIONED AP PEAL ON 05/09/2018. THE APPEAL HAS BEEN DISMISSED ON ACCOUNT OF DEFECT SINCE IT WAS NOT SIGNED AND VERIFIED AS PER STATUTORY MANDATE. THE LD. DR SUBMITTED THAT THERE IS DELAY OF 730 DAYS IN THE APPLICATION. 2 2. THE LEARNED AR EXPLAINED THAT THE ASSESSEE WAS A JOINT VENTURE COMPANY OF UB GROUP, INDIA AND OSTAN GROUP OF SINGAPORE. THE PROJECT WAS TO BE SHELVED - OFF AND ALL THE DIRECTORS IN INDIA RESIGNED FROM THE COMPANY. THEREFORE, THE APPEAL WAS SIGNED BY EX - DIRECTOR OF THE ASSESSEE SINCE THERE WAS DELAY IN R ECEIPT OF FORM - 36 FROM SINGAPORE. IN THE MEANTIME, THE APPEAL WAS DISMISSED BY TRIBUNAL EX - PARTE QUA THE ASSESSEE. THE MISCELLANEOUS APPLICATION WAS PREPARED AND SENT TO ASSESSEE BUT OWING TO NON - CO O PERATION FROM UB GROUP IN INDIA , IT TOOK TIME TO FILE THE APPLICATION AND THE PERIOD OF 6 MONTHS ELAPSED. IT WAS FURTHER SUBMITTED THAT NON - RESTORATION OF APPEAL WOULD CAUSE IRREPARABLE LOSS TO ASSESSEE AND THEREFORE, THE ORDER MAY BE RECALLED IN TERMS OF RULE 24 OF THE APPELLATE TRIBUNAL RULES, 1963 SINCE THE N ON - COMPLIANCE WAS FOR SUFFICIENT CAUSE. 3. IN SUPPORT, L D.AR REFERRED TO THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF GOLDEN TIMES SERVICES PRIVATE LTD. V/S DCIT {WP(C) NO.402/2020 } WHEREIN HONBLE COURT HELD THAT THE APPROACH ADOPTED BY ITAT I N DISMISSING THE APPLICATION FOR RECALL OF ORDER, CANNOT BE COUNTENANCED PARTICULARLY SINCE RULE 24 OF ITAT RULES MANDATE IT TO DECIDE THE APPEAL ON MERITS AND THERE IS NO LIMITATION PROVIDED IN RULE 24. SIMILARLY, HONBLE BOMBAY HIGH COURT IN PR.CIT V/S I TAT (WP NO.2858 OF 2019) HELD THAT AS PER RULE 24, TRIBUNAL IS VESTED WITH THE POWER TO RECALL AN EX - PARTE ORDER. FOR RECALLING SUCH AN ORDER, ITAT MUST BE SATISFIED THAT THERE WAS SUFFICIENT CAUSE FOR NON - APPEARANCE OF THE ASSESSEE. NO TIME LIMIT IS PRESC RIBED IN THE RULES. 4. AFTER GOING THROUGH THE APPLICATION AND AFTER APPRECIATING THE ARGUMENTS ADVANCED BY LD. AR, THE BENCH IS CONVINCED THAT THERE W AS SUFFICIENT / REA SONABLE CAUSE FOR PREFERRING MISCELLANEOUS APPLICATION 3 WITHIN TIME AND THE DELAY WAS TO BE CONDONED. AT THE SAME TIME, WE RECALL EX - PARTE ORDER DATED 05/09/2018 AND THE APPEAL IS RESTORED BACK TO ITS ORIGINAL STATUS . WE ORDER SO. THE REGISTRY IS DIRECTED TO FIX THE APPE A L BEFORE REGULAR BENCH IN NORMAL COURSE OF HEARING. 5. THE APPLICATION STAND ALLOWED. ORDER PRONOUNCED ON 30TH JULY, 2021. SD/ - SD/ - ( SAKTIJIT DEY ) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 30/07/2021 SR.PS, JAISY VARGHESE / 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 FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBA I.