GIZA MARKETING P.LTD, V. ASST CIT CIR 8(1),

MA 134/MUM/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4101 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2007-2008
• Appeal Filed On: 11-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M SUBRAMANIAN
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH G, MUMBAI BEFORE SHRI B.R.BASKARAN, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER M.A. NO.134/MUM/2015 (ARISING OUT OF ITA NO.3450/MU M/2011) ASSESSMENT YEAR: 2007-08 M/S GIZA MARKETING PVT. LTD. 101/102, G.N.TOWER, OFF. S.V. ROAD, ANDHERI (W), MUMBAI-400058. PAN: AAACG2409A VS. ACIT- 8(1), AAYAKAR BHAVAN, M.K.ROAD, MUMBAI-400012. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI M. SUBRAMANIA N REVENUE BY : SHRI NITIN WAGHMOD E (DR) DATE OF HEARING : 22.01.2016 DATE OF PRONOUNCEMENT : 03.02.2016 O R D E R PER PAWAN SINGH, JM: 1. THIS MISCELLANEOUS APPLICATION (MA) HAS BEEN FILED BY THE ASSESSEE FOR RECALLING THE ORDER DATED 31.07.2012 , WHEREIN THIS TRIBUNAL HAD DISMISSED THE APPEAL OF THE ASSESSEE EX-PARTE, OBSERVING AS UNDER: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 25.02.2011 OF CIT(A) FOR THE ASSESSMENT YEAR 2007-08. THE ASSESSE E IN THIS APPEAL HAS RAISED DISPUTES ON SEVERAL GROUNDS, HOWEVER, NO ONE APPEAR ED TO REPRESENT THE CASE ON BEHALF OF THE ASSESSEE WHEN THE APPEAL CAME UP FOR HEARING ON 31.07.2012. WE NOTED FROM THE PERUSAL ON RECORD THAT ON EARLIER OC CASIONS ALSO NO ONE HAD APPEARED ON BEHALF OF THE ASSESSEE TO REPRESENT THE CASE NOR ANY ADJOURNMENT APPLICATION HAS BEEN RECEIVED. IT CAN, THEREFORE, R EASONABLY BE CONCLUDED THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING THE APPEAL. THE APPEAL DOES NOT MEAN ONLY FILING OF MEMORANDUM OF APPEAL BUT ALSO PURSUING IT EFFECTIVELY AS HELD BY HON'BLE SUPREME COURT IN THE CASE OF B.N.BHATACHATJEE AND A NR. (118 ITR 461). IN SUCH CASES WHERE AN APPELLANT IS NOT INTERESTED IN PROSE CUTION OF APPEAL COURT/ TRIBUNAL HAVE INHERENT POWER TO DISMISS THE PROCEEDINGS FOR NON PROSECUTION AS HELD BY HON'BLE HIGH COURT OF MUMBAI IN CASE OF M/S CHEMIPO L VS. UNION OF INDIA IN EXCISE APPEAL NO.62/2009 ON THE FACTS OF THIS CASE, I AM CONVINCED THAT THE ASSESSED IS NOT INTERESTED IN PURSUING THE APPEAL. WE THEREFORE, DISMISS THE APPEAL OF THE ASSESSED AS UNADMITTED. ' 2 MA NO. 134/M/2014 M/S GIZA MARKETING PVT. LTD. 2. THE AR OF THE ASSESSEE ARGUED THAT THE PRESENT APPE AL WAS FIXED ON 27-02-12 BEFORE THE 'G' BENCH OF THE HON'BLE TRIBUNAL. HOWEVER, ON 27-0 2-12, THE HON'BLE 'G' BENCH OF THE TRIBUNAL DID NOT FUNCTION AND THE CASE WAS TAKEN UP ON 28TH FEBRUARY 12, AND WAS ADJOURNED FOR 17/04/2012. THEREAFTER, THE APPLICANT DID NOT RECEIVE ANY NOTICE OR INTIMATION REGARDING THE NEW DATE OF HEARING FIXED FOR HEARING THE APPLICANT'S APPEAL. SUBSEQUENTLY, AN EX-PARTE ORDER DATED 31-07-12 WAS RECEIVED. IN OTHE R WORDS, THE APPLICANT DID NOT KNOW ABOUT THE DATE OF HEARING OF THE APPEAL AND HENCE C OULD NOT BE REPRESENTED. 3. THE AR OF THE ASSESSEE HAS ALSO ARGUED THAT NONE OF THE GROUNDS RAISED IN THE PRESENT APPEAL WAS DISCUSSED IN THE ORDER AND THE ASSESSEE IS ENTITLED TO BE HEARD ON THE MERIT OF THE CASE AND REQUESTED TO RECALL THE ORDER DATED 31.07. 2012. 4. WE HAVE HEARD LD. AR OF THE ASSESSEE AND PERUSED TH E MATERIAL AVAILABLE ON RECORD AND FOUND THAT THE PRESENT APPEAL WAS TAKEN UP ON 28.02 .2012 FOR THE FIRST TIME, AS THE BENCH WAS NOT FUNCTIONING THE MATTER WAS ADJOURNED TO 17. 04.2012. ON 17.04.2012 NOTICED WAS ORDERED TO BE ISSUED TO THE ASSESSEE FOR 05.06.2012 AND THE SAME WAS DULY SERVED UPON THE ASSESSEE ON 26.04.2012 THROUGH REGISTERED AD. ON 05 .06.2012 THE CASE WAS ADJOURNED FOR 31.07.2012 SINCE THE BENCH DID NOT FUNCTION AND ON 31.07.2012 AS NONE APPEARED ON BEHALF OF ASSESSEE, THE APPEAL WAS DISMISSED IN NON -PROSECUTION. 5. IN EFFECT, THE ASSESSEE COULD NOT APPEAR ON 31.07.2 012, SINCE THE ASESSEE WAS NOT AWARE OF THE NEW DATE, WHICH WAS INTIMATED THROUGH NOTICE BO ARD ON 05.06.2012. HENCE, WE ARE OF THE VIEW THAT THERE WAS A REASONABLE CAUSE FOR THE ASSESSEE IN NOT APPEARING BEFORE THE BENCH ON 31.07.2012. ACCORDINGLY, IN EXERCISE OF TH E POWERS GRANTED TO THE TRIBUNAL UNDER RULE 24 OF APPELLATE TRIBUNAL RULES, 1963, WE RECAL L THE EX-PARTE ORDER AND RESTORE THE APPEAL. 6. THE APPEAL IS NOW FIXED FOR HEARING ON 20.04.2016 ( INFORMED VIDE ORDER-SHEET DATED 22.01.2016) AND THE ASSESSEE SHOULD NOT FAIL TO APP EAR WITHOUT REASONABLE CAUSE. SINCE THE DATE OF HEARING IS ANNOUNCED IN THE OPEN COURT, THE REGISTRY NEED NOT SEND NOTICE OF HEARING TO THE PARTIES. 7. IN THE RESULT, M.A. FILED BY THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 03 FEBRU ARY, 2016. SD/- SD/- ( B.R.BASKARAN ) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 03/02/2016 S.K.PS 3 MA NO. 134/M/2014 M/S GIZA MARKETING PVT. LTD. / 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/