TEN CONSTRUCTIONS (INDIA) PRIVATE LIMITED , MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX 15(3)(1), MUMBAI

MA 118/MUM/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6980 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2010-2011
• Appeal Filed On: 20-05-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R B POPAT

Judgement Text

M.A. NO. 118/MUM/2021 A.Y. 2010 - 11 (ARISING OUT OF ITA NO. 4911/MUM/2017) TEN CONSTRUCTION INDIA PVT. LTD. VS. ACIT 15(3)(1) 1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E MUMBAI BEFORE SHRI M.BALAGANESH (ACCOUNTANT MEMBER) AND SHRI RAVISH SOOD (JUDICIAL MEMBER) M.A NO.118/MUM/2021 (ARISING OUT OF ITA NO. 4911/MUM/2017) (ASSESSMENT YEAR: 2010 - 11) TEN CONSTRUCTION INDIA PVT. LTD. 3 RD FLOOR, SHOP NO. J 219, TOWER NO. 5, VASHI RAILWAY STATION, NAVI MUMBAI 400705 VS. ACIT 15(3)(1), 4 TH FLOOR, ROOM NO. 451, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020 PAN NO. AABCE1303J ( ASSESSEE) (REVNEUE) ASSESSEE BY : SHRI R.B. POPAT, A.R REVENUE BY : SHRI SUSHIL KUMAR MISHRA, D.R DATE OF HEARING : 16/07/2021 DATE OF PRONOUNCEMENT : 10 /08/2021 ORDER PER RAVISH SOOD, J.M: THE PRESENT APPLICATION FILED BY THE ASSESSEE ON 20.05.2021 ARISE S FROM THE ORDER PASSED BY THE TRIBUNAL WHILE DISPOSING OFF THE REVENUES APPEAL IN ITA NO. 4911/MUM/2017, DATED 10.10.2019 FOR A.Y. 2010 - 11. 2. AS IS DISCERNIBLE FROM THE APPLICATION, IT IS STATED BY THE ASSESSEE APPLICANT THAT THE TRIBUNAL HAD DISPOSED OFF THE AFORESAID APPEAL BY WAY OF AN EX - PARTE ORDER, DATED 10.10.2019. IT IS SUBMITTED BY SHRI. MITESH NEMICHAND SHAH, MANAGING DIRECTOR OF THE A SSESSEE COMPANY , THAT AS NO NOTICE I NTIMATING THE FIXATION OF THE APPEAL WAS SERVED UPON THE ASSESSEE COMPANY , THEREFORE, FOR THE SAID REASON THE LATTER HAD FAILED TO PUT UP AN APPEARANCE ON THE STIPULATED D A TE M.A. NO. 118/MUM/2021 A.Y. 2010 - 11 (ARISING OUT OF ITA NO. 4911/MUM/2017) TEN CONSTRUCTION INDIA PVT. LTD. VS. ACIT 15(3)(1) 2 WHEN THE APPEAL WAS CALLED FOR HEARING. IT IS FURTHER STATED BY HIM, THAT THE FACT THAT THE APPEAL WAS DISPOSED OFF BY THE TRIBUNAL HAD CAME TO HIS NOTICE ON 05.01.2021 I.E WHEN HE HAD APPROACHED THE OFFICE OF THE JURISDICTIONAL A.O AND WAS INFORMED THAT THE REFUND DUE TOWARDS THE ASSESSEE COMPANY WA S REDUCED PURSUANT TO THE ORDER OF THE TRIBUNAL. IT IS FURTHER CLAIMED BY HIM THAT ON LEARNING ABOUT THE AFORESAID FACT HE HAD APPLIED FOR A COPY OF THE ORDER OF THE TRIBUNAL AND THE SAME WAS PROVIDED TO HIM. IN THE BACKDROP OF THE AFORESAID FACTS, IT WAS SUBMITTED BY SHRI. MITESH NEMICHAND SHAH (SUPRA) THAT AS THE FAILURE ON THE PART OF THE ASSESSEE COMPANY TO PUT UP AN APPEARANCE AT THE TIME OF HEARING OF THE APPEAL WAS DUE TO THE AFORESAID BONAFIDE REASONS, THEREFORE, THE AFORESAID EX - PARTE ORDER BE RECA LLED IN EXERCISE OF THE POWERS VESTED WITH THE TRIBUNAL UNDER THE PROVISO TO RULE 2 5 OF THE APPELLATE TRIBUNAL RULES, 1963. IN ORDER TO BUTTRESS THE AFORESAID FACTUAL POSITION AN AFFIDAVIT OF SHRI MITES H NEMICHAND SHAH (SUPRA) HAD BEEN FILED ALONGWITH THE PRESENT APPLICATION . 3. BEFORE US, IT WAS SUBMITTED BY THE LD. AUTHORIZED REPRESENTATIVE (FOR SHORT A.R) FOR THE ASSESSEE APPLICANT , THAT THE FAILURE ON THE PART OF THE ASSESSEE TO PUT FORTH AN APPEARANCE AT THE TIME OF HEARING OF THE APPEAL , HAD O CCASIONED , FOR THE REASON THAT NO NOTICE INTIMATING THE FIXATION OF THE APPEAL WAS EVER SERVED UPON THE ASSESSEE. THE LD. A.R TOOK US THROUGH THE PRESENT APPLICATION FILED BY THE ASSESSEE COMPANY BEFORE US. IN THE BACKDROP OF THE AFORESAID FACTS, IT WAS SU BMITTED BY THE LD. A.R THAT AS THE AFORESAID FAILURE ON THE PART OF THE ASSESEE TO PARTICIPATE IN THE APPELLATE PROCEEDINGS WAS BACKED BY THE AFORE STATED BONAFIDE REASONS, THEREFORE, THE TRIBUNAL IN EXERCISE OF THE POWERS VESTED WITH IT UNDER RULE 25 OF T HE APPELLATE TRIBUNAL RULES 1963 BE PLEASE D TO RECALL ITS EX - PARTE ORDER, DATED 10.10.2019. 4. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE (FOR SHORT D.R) OBJECTED TO THE APPLICATION FILED BY THE ASSESSEE SEEKING RECALL OF THE ORDER PASSED BY THE TRI BUNAL. IT WAS SUBMITTED BY THE LD. D.R THAT AS THE ASSESSEE ON ACCOUNT OF HIS M.A. NO. 118/MUM/2021 A.Y. 2010 - 11 (ARISING OUT OF ITA NO. 4911/MUM/2017) TEN CONSTRUCTION INDIA PVT. LTD. VS. ACIT 15(3)(1) 3 LACKADAISICAL APPROACH HAD FAILED TO PUT UP AN APPEARANCE ON THE STIPULATED DATE OF HEARING OF THE APPEAL, THEREFORE, THERE WAS NO JUSTIFICATION ON ITS PART TO NOW SEEK RECALLING OF THE ORDER. 5. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES FOR BOTH THE PARTIES, PERUSED THE ORDER OF THE TRIBUNAL THAT WAS PASSED WHILE DISPOSING OFF THE APPEAL , AND THE MATERIAL AVAILABLE ON RECORD. AS IS DISCERNIBLE FROM THE APPLICATION FILED BY THE ASSESSEE, WE FIND , THAT IT IS CLAIMED THAT THE FAILURE ON ITS PART TO PARTICIPATE IN THE APPELLATE PROCEEDINGS WAS FOR THE REASON THAT NO NOTICE INTIMATING THE FIXATION OF THE SAID APPEAL WAS EVER SERVED UPON IT. IN ORDER TO FORTIFY ITS AFORESAID CLAI M THE ASSESSEE HAD A/W ITS AFORESAID APPLICATION FILED AN AFFIDAVIT OF ITS MANAGING DIRECTOR, WHEREIN THE LATTER HAD DEPOSED THE AFORESAID FACTUAL POSITION. 6. AFTER NECESSARY DELIBERATIONS, WE FIND SUBSTANTIAL FORCE IN THE CLAIM OF THE ASSESSEE THAT THE FAILURE ON ITS PART TO PARTICIPATE IN THE APPE LLATE PROCEEDINGS WAS NOT FOR ANY REASON ATTRIBUTABLE ON ITS PART , BUT DUE TO FACT THAT NO NOTICE INTIMATING THE FIXATION OF THE APPEAL WAS EVER SERVED UPON IT. IN FACT, THE AFORESAID CLAIM OF THE ASSESSEE IS FORTIFIED BY THE FACT THAT THE ENVELOPE (CONTAINING THE NOTICE ABOUT THE FIXATION OF THE APPEAL) WAS RETURNED BY THE POSTAL AUTHORITIES AND THE SAME FORM S PART OF THE RECORD BEFORE US. APART FROM THAT, THE AFORESAID REASONS LEADING TO FAILURE ON THE PAR T OF THE ASSESSEE TO PROSECUTE ITS APPEAL ON THE STIPULATED DATE IS SUPPORTED BY AN AFFIDAVIT OF THE MANAGING DIRECT OR, WHICH FURTHER INSTILLS CONFIDENCE AS REGARDS THE AFORESAID FACTUAL POSIT I ON SO CANVASSED BY THE LEARNED A.R BEFORE US. ACCORDINGLY, IN THE TOTALITY OF THE FACTS, WE HEREIN IN ALL FAIRNESS IN EXERCISE OF THE POWERS VESTED WITH US UNDER THE PROVISO TO RULE 25 O F THE APPELLATE TRIBUNAL RULES, 1963, HEREIN RECALL THE ORDER PASSED BY THE TRIBUNAL IN ITA NO. 4911/MUM/2017, DATED 10.10.2019. THE REGISTRY IS DIRECTED TO FIX THE HEARING OF THE APPEAL ON 23.08.2021. AS THE DATE OF FIXATION OF THE APPEAL WAS PRONOUNCED IN THE OPEN COURT, THEREFORE, NO SEPARATE NOTICE SHALL BE M.A. NO. 118/MUM/2021 A.Y. 2010 - 11 (ARISING OUT OF ITA NO. 4911/MUM/2017) TEN CONSTRUCTION INDIA PVT. LTD. VS. ACIT 15(3)(1) 4 FORWARDED T O THE CONCERNED PARTIES. ACCORDINGLY, THE APPLICATION FILED B Y THE ASSESSEE APPLICANT IS ALLOWED IN TERMS OF OUR AFORESAID OBSERVATIONS. 7. RESULTANTLY, THE APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER PR ONOUNCED IN THE OPEN COURT ON 10 .08.2021 SD/ - SD/ - ( M. BALAGANESH ) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 10 .08 .2021 PS: ROHIT COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (SR. PRIVATE SECRETARY) ITAT, MUMBAI