A.C.I.T.20(1), V. SANDRA PEREIRA,

MA 149/MUM/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9518 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-10-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2003-2004
• Appeal Filed On: 11-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'H' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER MA NO. 149/MUM/2011 (ARISING OUT OF ITA NO. 7540/MUM/2007 (ASSESSMENT YEAR: 2003-04) A C I T - 20(1) MS. SANDRA PEREIRA ROOM NO. 603, 6TH FLOOR LEGAL HIER OF LATE SHRI KEITH BOSCO PERERIA PIRAMAL CHAMBERS, PAREL VS. 3, SWAMI SHIVANAND CHS MUMBAI 400012 CARDINAL GRACLUBS ROAD, CHAKALA ANDHERI (E), MUMBAI 400099 PAN - AAFPP 6557 N APPLICANT RESPONDENT APPLICANT BY: SHRI MOHIT JAIN RESPONDENT BY: SHRI VIJAY MEHTA DATE OF HEARING: 12.10.2012 DATE OF PRONOUNCEMENT: 19.10.2012 O R D E R PER D. MANMOHAN, V.P. THIS PETITION IS FILED AT THE INSTANCE OF THE REVEN UE, SEEKING RECALL OF THE ORDER DATED 16 TH SEPTEMBER, 2010, FOR THE REASONS STATED IN THE MISCELLANEOUS APPLICATION. 2. IT MAY BE NOTICED HERE THAT THE AO WAS AWARE OF THE FACTUM OF DEATH OF THE ASSESSEE BEFORE COMPLETION OF THE ASSESSMENT BU T PROCEEDED TO COMPLETE THE ASSESSMENT IN THE HANDS OF THE DECEASED-ASSESSE E MAKING CERTAIN ADDITIONS. SINCE THE ADDITIONS WERE DISPUTED BEFORE THE LEARNED CIT(A), WHEREIN CERTAIN RELIEF WAS GRANTED, REVENUE PREFERR ED AN APPEAL BEFORE THE TRIBUNAL. EVEN AT THIS STAGE THE DECEASED-ASSESSEE WAS SHOWN AS RESPONDENT OVERLOOKING THE FACT THAT UNDER SECTIO N 159(3) OF THE ACT THE LEGAL REPRESENTATIVE OF THE DECEASED SHALL, FOR THE PURPOSES OF THIS ACT, BE DEEMED TO BE AN ASSESSEE. 3. THE APPEAL WAS FILED IN 2007. AT THE EARLIEST I.E., ON 18.03.2009 THE ASSESSEES COUNSEL POINTED OUT THAT THE APPEAL WAS FILED AGAINST A WRONG MA NO. 149/MUM/2011 MS. SANDRA PEREIRA 2 PERSON AND IT WAS NOT AGAINST THE LEGAL HEIR OF THE DECEASED AND HENCE THE APPEAL DESERVES TO BE DISMISSED. ACCORDINGLY THE CA SE WAS ADJOURNED TO ENABLE THE APPELLANT TO FILE A PROPER APPEAL OR TO RECTIFY THE DEFECT. DESPITE NUMBER OF ADJOURNMENTS, SPANNING OVER A PERIOD OF O NE AND A HALF YEARS, THE APPELLANT AO DID NOT BOTHER TO BRING THE LEGAL HEIR ON RECORD, BY SHOWING HER AS RESPONDENT IN FORM NO. 36. HAVING REGARD TO THE CIRCUMSTANCES OF THE CASE, UPON CONSIDERING THE ARGUMENTS ADVANCED B Y THE LEARNED COUNSEL FOR THE ASSESSEE AS WELL AS THE LEARNED D.R., THE B ENCH DISMISSED THE APPEAL BY OBSERVING THAT THE REVENUE IS NOT INTERESTED IN PROSECUTING THE APPEAL - AS OTHERWISE IT WOULD HAVE RECTIFIED THE DEFECTS IN THE APPEAL. THE ORDER WAS PASSED ON 16 TH SEPTEMBER, 2010. THOUGH THE ORDER IS PRONOUNCED IN THE OPEN COURT IT TOOK ANOTHER SIX MONTHS FOR THE REVEN UE TO REALISE THE MISTAKE AND VIDE MISCELLANEOUS APPLICATION DATED NIL, FILED ON 11.03.2011, IT WAS SUBMITTED THAT IN THE BODY OF THE ASSESSMENT ORDER IT WAS CLEARLY MENTIONED THAT THE ASSESSEE HAD PASSED AWAY, WHICH IMPLIES TH AT THE NAME OF THE LEGAL HEIR WAS ALREADY BROUGHT ON RECORD. IT WAS ALSO STA TED THAT FOR THE REASONS BEYOND THE CONTROL OF THE UNDERSIGNED, THE COMMUNIC ATIONS/NOTICES SENT BY THE HON'BLE ITAT DIRECTING THE APPELLANT TO FILE CO RRECT FORM NO. 36 DULY RECTIFYING THE DEFECTS COULD NOT BE LOCATED AND HEN CE REQUISITE COMPLIANCE COULD NOT BE MADE IN TIME, OVERLOOKING THE FACT TH AT THE DEPARTMENTAL REPRESENTATIVE WAS INFORMED IN THE COURT ON 18.03.2 009 AND FROM TIME TO TIME THE CASE WAS ADJOURNED, APART FROM THE FACT TH AT A LETTER WAS ISSUED TO THE ACIT-21 FOR CONFIRMATION ABOUT THE DEATH OF THE ASSESSEE, WHICH IMPLIES THAT THE AO WAS AWARE OF THE DEFECT IN THE APPEAL F ILED. AT ANY RATE, EVEN AFTER DISMISSAL OF THE APPEAL IN THE OPEN COURT, IT HAS TAKEN SIX MONTHS FOR THE AO TO FILE A MISCELLANEOUS APPLICATION WHICH SH OWS THAT THEY ARE LEAST INTERESTED IN PROSECUTING THE APPEAL SINCERELY. 4. THE LEARNED COUNSEL FOR THE ASSESSEE STRONGLY OBJEC TED TO THE RECALL OF THE ORDER ON THE GROUND THAT THERE IS NO MISTAKE AP PARENT FROM RECORD AND THERE IS NO SATISFACTORY EXPLANATION FOR NON-PROSEC UTION OF THE MATTER IN A PROPER MANNER, PARTICULARLY BY VIRTUE OF THE FACT T HAT THE DEPARTMENTAL REPRESENTATIVE APPEARED ON THE DATE OF HEARING. MA NO. 149/MUM/2011 MS. SANDRA PEREIRA 3 5. HAVING REGARD TO THE CIRCUMSTANCES OF THE CASE WE A RE OF THE VIEW THAT THE ORDER PASSED ON 16.09.2010 DOES NOT SUFFER FROM ANY INFIRMITY. DISMISSAL OF THE APPEAL, IN THE BACKDROP OF THE FAC TS, CANNOT BE STATED TO BE AN ERROR APPARENT ON RECORD. IN FACT, APART FROM DE LAY IN COMPLYING WITH THE DEFECT MEMO AND DIRECTIONS TO THE DEPARTMENTAL REPR ESENTATIVE, THE FACT THAT THE AO HAS TAKEN FURTHER SIX MONTHS FROM THE D ATE OF DISMISSAL OF THE APPEAL, WHICH IS PRONOUNCED IN THE OPEN COURT, INDI CATES THAT NON- RECTIFICATION OF THE DEFECT IS NOT ON ACCOUNT OF SU FFICIENT CAUSE. HAVING REGARD TO THE OVERALL CIRCUMSTANCES WE DO NOT FIND ANY MER IT IN THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE. WE, THEREFORE, DI SMISS THE MISCELLANEOUS APPLICATION AS UNADMITTED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH OCTOBER, 2012. SD/- SD/- (RAJENDRA SINGH) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATED: 19 TH OCTOBER, 2012 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) XX, MUMBAI 4. THE CIT XX, MUMBAI CITY 5. THE DR, H BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.