SALEEM MOHD. NAZIR SHAIKH, MUMBAI V. DCIT CEN CIR 5(1), MUMBAI

MA 12/MUM/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3149 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 7 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-08-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 11-08-2022
• Assessment Year: 2014-2015
• Appeal Filed On: 09-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K. GOPAL AW OM KANDALKAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, MUMBAI BEFORE SHRI OM PRAKASH KANT, ACCOUNTANT MEMBER AND SHRI SANDEEP SINGH KARHAIL, JUDICIAL MEMBER M.A. No. 12/Mum./2019 IN ITA No. 495/Mum./2018 (Assessment Year : 2014–15) Saleem Mohd. Nazir Shaikh Flat no.1501, 15 th Floor Libra Tower, Hill Road Bandra (West), Mumbai 400 050 PAN – AMBPS4606D ................ Applicant v/s Dy. Commissioner of Income Tax Circle–5(1), Mumbai ................ Respondent Assessee by : Shri K. Gopal a/w Shri Om Kandalkar and Ms. Neha Paranjpe Revenue by : Shri Soumendu Kumar Dash, Sr. AR Date of Hearing – 12.08.2022 Date of Order – 22/08/2022 O R D E R PER SANDEEP SINGH KARHAIL, J.M. The present Miscellaneous Application has been filed by the assessee seeking recall of the ex–parte order dated 25/09/2018, passed under section 254(1) of the Income Tax Act, 1961 ("the Act") by the Co–ordinate Bench of the Tribunal in assessee’s appeal being ITA no.495/ Mum./2018, for the assessment year 2014–15. Saleem Mohd. Nazir Shaikh M.A. No.12/Mum./2019 Page | 2 2. During the course of hearing, the learned A.R. submitted that the assessee's appeal was decided ex-parte as none appeared on behalf of the assessee on the date fixed for hearing. The learned A.R. further submitted that the since the assessee and his family members were out of Mumbai at the time of delivery of notice by the postal authorities, the same was returned unserved. A copy of the Tribunal’s order was despatched to the assessee by post, which was received on 05/10/2018, and hence, the present Miscellaneous Application has been filed seeking recall of the order dated 25/09/2018, for hearing on merits. The learned A.R. also submitted that there is no change in the address of the assessee. Accordingly, the learned A.R. prayed for recall of the order passed by the Co-ordinate Bench of the Tribunal. 3. The learned D.R. opposing the prayer for recall of the order submitted that in the present Miscellaneous Application also, no one appeared on behalf of the assessee in previous hearings. 4. We have considered the rival submissions and perused the material available on record. From the perusal of the appeal record, we noticed that only one notice was issued through registered A/D to the assessee intimating the date of hearing, which was returned unserved by the postal authorities. The Co–ordinate Bench of the Tribunal in the absence of representation on behalf of the assessee proceeded to decide the appeal filed by the assessee ex–parte qua the assessee after hearing the submissions of the Revenue and perusal of the material available on Saleem Mohd. Nazir Shaikh M.A. No.12/Mum./2019 Page | 3 record. By way of the present Miscellaneous Application, the assessee has sought recall of the aforesaid order dated 25/09/2018. The present Miscellaneous Application is also supported by an Affidavit of the assessee, wherein it has been submitted that the first notice of hearing of appeal was not received by the assessee, as the assessee was out of station for several days and, therefore, due to this reason, the notice sent through registered post was returned unserved. From the perusal of the record, we find that the present Miscellaneous Application is getting listed since February 2019. We further find that on several initial hearings, the present Miscellaneous Application was adjourned at the request of the assessee. We also find that since 12/02/2021, till last date of hearing, no one appeared on behalf of the assessee despite issuance of notice by registered post A/D. It is only pursuant to our direction vide order sheet dated 08/07/2022, whereby notice was directed to be issued also to the Authorised Representative who had once appeared for the assessee and whose address was noted from various adjournment letters filed initially on behalf of the assessee that the learned A.R., Shri K. Gopal, appeared and argued the present Miscellaneous Application on behalf of the assessee. The learned A.R. also gave an undertaking that he will be appearing in the appeal hearing as and when the same is listed. In view of the submissions made in the Affidavit supporting the present Miscellaneous Application, we are of the considered view that there was sufficient cause for non–appearance on behalf of the assessee when the appeal was called for hearing. Therefore, we deem it fit and appropriate to recall the aforesaid ex–parte order dated 25/08/2018, Saleem Mohd. Nazir Shaikh M.A. No.12/Mum./2019 Page | 4 passed in assessee’s appeal being ITA no.495/Mum./2018, for fresh hearing of the appeal on merits. In view of the undertaking given by the learned A.R. that he will be appearing in the appeal hearing and in this regard has also filed his Vakalatnama, the appeal is fixed for hearing on 10/10/2022, i.e., the date convenient to both the parties. Since the date of hearing is pronounced in the open Court, the service of notice to the parties is hereby dispensed with. 3. In the result, assessee’s Miscellaneous Application is allowed. Order pronounced in the open court on 22/08/2022 Sd/- OM PRAKASH KANT ACCOUNTANT MEMBER Sd/- SANDEEP SINGH KARHAIL JUDICIAL MEMBER MUMBAI, DATED: 22/08/2022 Copy of the order forwarded to: (1) The Assessee; (2) The Revenue; (3) The CIT(A); (4) The CIT, Mumbai City concerned; (5) The DR, ITAT, Mumbai; (6) Guard file. True Copy By Order Pradeep J. Chowdhury Sr. Private Secretary Assistant Registrar ITAT, Mumbai