GAHLOT CONSTRUCTION, MUMBAI V. ITO 28 (1)(1), MUMBAI

MA 135/MUM/2023

AI Insights

Gehlot Construction filed a Miscellaneous Application seeking recall of an ex-parte order passed by the Income Tax Appellate Tribunal in an appeal by the Revenue for the assessment year 2008-09. The ex-parte decision was made as no representative for Gehlot Construction appeared during the hearing. The assessee claimed that they did not receive any notice for the hearing, and only became aware of the Tribunal's decision upon receiving the order by registered post months later. The Tribunal found that the notice of hearing was indeed received by the assessee after the scheduled date, thus justifying the recall of the ex-parte order.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 299452 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-07-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 18-05-2023
• Assessment Year: 2008-2009
• Appeal Filed On: 05-02-2023
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “G” BENCH, MUMBAI BEFORE SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER, AND SHRI SANDEEP SINGH KARHAIL, JUDICIAL MEMBER M.A. no.135/Mum./2023 (Arising out of ITA No.2475/Mum./2021) (Assessment Year : 2008–09) Gehlot Construction Plot no.28A, Gahlot Complex Sector–10, Nerul, Navi Mumbai 400 703 PAN – AAOFM5698J ................ Applicant (Original Respondent) v/s Income Tax Officer Ward–28(1)(1), Mumbai ................Respondent (Original Appellant) Assessee by : Ms. Ritika Agarwal Revenue by : Shri Nihar Ranjan Samal Date of Hearing – 19/05/2023 Date of Order – 31/07/2023 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 05/09/2022, passed under section 254(1) of the Income Tax Act, 1961 ("the Act") by the Co–ordinate Bench of the Tribunal in Revenue’s appeal being ITA no. 2475/Mum./2021, for the assessment year 2008-09. 2. During the hearing, the learned A.R. submitted that the Revenue’s appeal was decided ex-parte qua the assessee as none appeared on behalf of the assessee on the date fixed for the hearing. The learned A.R. further Gehlot Construction M.A. no.135/Mum./2023 Page | 2 submitted that the assessee did not receive even a single notice fixing the hearing of the appeal and therefore could not appear before the Tribunal on the date of the hearing. The learned A.R. submitted that only on receipt of the impugned order by register post on 28/12/2022, the assessee came to know about the order passed by the Tribunal dismissing its appeal. Accordingly, the learned A.R. prayed for recall of the ex-parte order passed by the Co-ordinate Bench of the Tribunal. In support of its submission, the learned A.R. also placed on record the copy of the service report of ITO dated 12/09/2022. The learned AR also furnished a copy of the acknowledgement of the service of hearing notice on 10/09/2022 on the assessee. 3. On the other hand, the learned D.R. vehemently opposed the prayer for recall of the order. 4. We have considered the submissions of both sides and perused the material available on record. 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 Revenue ex–parte qua the assessee after hearing the submissions of the Revenue and perusal of the material available on record. By way of the present Miscellaneous Application, the assessee has sought recall of the aforesaid order dated 05/09/2022. It is the plea of the assessee that since the notices for hearing were not received, therefore, no representation could be made before the Tribunal on the date of hearing of the appeal on behalf of the assessee. From the perusal of the record, we find that on 17/05/2022 fresh notice was directed to be issued to the assessee through learned D.R. Gehlot Construction M.A. no.135/Mum./2023 Page | 3 From the perusal of the service report dated 12/09/2022 addressed to ITO- 28(1)(1), we find that the said notice was served by the ITO on the new address of the assessee. From the copy of acknowledgement enclosed along with the aforesaid service report, we find that the assessee received the notice of hearing on 10/09/2022 at 3:30 PM, i.e. after the date of hearing. 5. Therefore, since in the present case the notice of hearing scheduled on 05/09/2022 was received by the assessee on 10/09/2022, i.e. after the date of hearing, 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 05/09/2022, passed in Revenue’s appeal being ITA no. 2475/Mum./ 2021, for a fresh hearing of the appeal on merits. The Registry is directed to fix the appeal for hearing in due course before the regular Bench, after notice to the parties. 6. In the result, the present Miscellaneous Application filed by the assessee is allowed. Order pronounced in the open Court on 31/07/2023 Sd/- PRASHANT MAHARISHI ACCOUNTANT MEMBER Sd/- SANDEEP SINGH KARHAIL JUDICIAL MEMBER MUMBAI, DATED: 31/07/2023 Gehlot Construction M.A. no.135/Mum./2023 Page | 4 Copy of the order forwarded to: (1) The Assessee; (2) The Revenue; (3) The PCIT / CIT (Judicial); (4) The DR, ITAT, Mumbai; and (5) Guard file. True Copy By Order Pradeep J. Chowdhury Sr. Private Secretary Assistant Registrar ITAT, Mumbai