DHARMIK EXIM PVT. LTD., MUMBAI V. DCIT - 9(1), MUMBAI

MA 120/MUM/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5472 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2000-2001
• Appeal Filed On: 30-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SHRI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER MA NO.120/M/2016 (ARISING OUT OF ITA NO.1403/M/2011 DATE OF DECISION : 15.07.2015) ASSESSMENT YEAR: 2000-01 M/S. DHARMIK EXIM P. LTD., 106, RUBY INDL. ESTATE, CHINCHOLI BUNDER ROAD EXTN., OFF LINK RD., MALAD (W), MUMBAI 400 064 PAN: AAACD3656N VS. DCIT-9(1), AAYAKAR BHAVAN, M. K. ROAD, MUMBAI - 400020 (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI PANKAJ TOPRANI, A.R. REVENUE BY : SHRI TUFAIL A. KHAN, D.R. DATE OF HEARING : 03.02.2017 DATE OF PRONOUNCEMENT : 03.02.2017 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN MOV ED BY THE ASSESSEE FOR RECALLING OF THE EX-PARTE ORDER DATED 15.07.201 5 AGAINST THE ASSESSEE. VIDE THE SAID ORDER OF THE TRIBUNAL, THE APPEAL OF THE A SSESSEE WAS DISMISSED EX- PARTE. THE TRIBUNAL HAS DISMISSED THE APPEAL OF TH E ASSESSEE NOT ONLY ON MERITS BUT ALSO ON THE GROUND THAT IT WAS DEFECTIVE. NOW IN THE PRESENT APPLICATION THE ASSESSEE HAS PLEADED THAT IT WAS IN FINANCIAL CRUNC H AND HAS NOT BEEN ABLE TO PAY SALARIES TO ITS MINIMUM STAFF AND BECAUSE OF TH AT THE STAFF BECAME NON COOPERATIVE. THE DEFECT NOTICE SENT BY THE REGISTR Y THEREFORE MIGHT NOT HAVE BEEN ACCEPTED BY THE STAFF AND WAS RETURNED AS NOT CLAIMED. THE ASSESSEE, HOWEVER, HAS PLEADED THAT EVEN OTHERWISE THE SAID N OTICE WAS NOT SERVED UPON THE ASSESSEE. IT HAS BEEN FURTHER PLEADED THAT IN THE QUANTUM APPEAL OF THE MA NO.120/M/2016 M/S. DHARMIK EXIM P. LTD. 2 ASSESSEE, THE TRIBUNAL HAS RESTORED THE MATTER BACK TO THE FILE OF THE AO, THEREFORE, THE VERY BASIS UPON WHICH THE PENALTY WA S LEVIED BY THE AO UNDER SECTION 271(1)(C) OF THE ACT, WHICH IS A MATTER IN THE APPEAL RELATING TO THE PRESENT APPLICATION, HAS CEASED TO EXIST. THEREFOR E, THE ASSESSEE, OTHERWISE, HAS A GOOD CASE ON MERITS. THE ASSESSEE COULD NOT PRES ENT ITSELF ON THE DATE OF HEARING BECAUSE OF THE ABOVE STATED REASONS. THE A PPLICATION OF THE ASSESSEE HAS BEEN SUPPORTED WITH AN AFFIDAVIT OF SHRI GULMEL WANI, A DIRECTOR OF THE ASSESSEE COMPANY. 2. THE LD. D.R., ON THE OTHER HAND, HAS OPPOSED THE APPLICATION. 3. AFTER CONSIDERING THE SUBMISSIONS MADE IN THE AP PLICATION WHICH ARE FURTHER SUPPORTED WITH THE AFFIDAVIT OF THE DIRECTO R OF THE ASSESSEE COMPANY, WE THINK THAT INTEREST OF JUSTICE WILL BE WELL SERVED, IF THE ASSESSEE IS ALLOWED TO CONTEST THE APPEAL ON MERITS. THE EX-PARTE ORDER D ATED 15.07.2015 IS THEREFORE RECALLED AND THE APPEAL IS RESTORED TO ITS ORIGINAL POSITION AND NUMBER, TO BE HEARD AFRESH ON MERITS. THE REGISTRY IS DIRECTED T O FIX THE APPEAL FOR HEARING IN REGULAR COURSE. THE ASSESSEE IS DIRECTED TO RECTIF Y THE DEFECTS IN THE APPEAL AS EARLY AS POSSIBLE AND AT LEAST 15 DAYS BEFORE THE D ATE OF HEARING. 4. IN THE RESULT, THE APPLICATION OF THE ASSESSEE S TANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 03.02.2017. SD/- SD/- (R.C. SHARMA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 15.02.2017. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT MA NO.120/M/2016 M/S. DHARMIK EXIM P. LTD. 3 THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.