LATE SMT. MALTI MAHENDRA MEHTA THROUGH LEGAL HEIR SHRI DHIREN M. MEHTA, MUMBAI V. ITO 21(3)(3), MUMBAI

MA 153/MUM/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 5123 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 05-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K MOHANDAO
• Assessee Lawyers: AJAY R SING

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI AMIT SHUKLA, JM AND SHRI RAJESH KUMAR, AM MISC. APPLICATION NO.153/MUM/2016 ARISING OUT OF ./ I.T.A. NO 2223/ MUM/ 2013 ( / ASSESSMENT YEAR : 2005 - 06 ) DHIREN MAHENDRA MEHTA L EGAL HEIR OF SMT. MALTI MAHENDRA MEHTA , 301 NEER DARSHAN 387, SHANKAR MATTHAM ROAD MATUNGA (CR) , MUMBAI 400 019. / VS. THE INCOME TAX OFFICER 21(3) (3) R.NO.507 56TH FL PRATAYAKSKAR B HAWAN BANDRA KURLA COMPLEX BANDRA (E) MUMBAI - 400 051. / APPLICANT BY : SHRI AJAY R SING /RESPONDENT BY : S HRI K MOHANDAO / DATE OF HEARING : 7.10.2016 / DATE OF PRONOUNCEMENT : 2. 12 . 2016 / O R D E R PER RAJESH KUMAR, A. M: BY WAY OF THIS MISCELLANEOUS APPLICATION THE L/H OF THE ASSESSEE IS SEEKING RESTORATION OF EX - PARTE ORDER PASSED BY THE TRIBUNAL VIDE ORDER DATED 2.2.2016 ON THE GROUND THAT AT THE TIME OF PASSING OF TH E ORDER ASSESSEE WAS NOT ALIVE. 2. THE LD.AR OF THE LEGAL HEIR OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE EXPIRED ON 1.5.2012 AND THE APPEAL WAS PRESENTED ON 20.3.2013 AND THE L/H OF ASSESSEE FILED AN AFFIDAVIT DATED 17.6.2014 ALONG WITH LETTER 2 MA NO. 153 /MUM/201 6 DATED 18.6 .2014 BRINGING ALL THINGS ON RECORDS. THE L/H OF THE ASSESSEE HAS ALSO FILED REVISED FORM NO.36 , DATED 20.3.2013 ALONG WITH AFFIDAVIT TO BRING LEGAL HAIR SHRI DHIREN MAHENDRA MEHTA SON OF THE ASSESSEE ON RECORD. 3. THE LD.AR OF THE LEGAL HEIR SUBMITS THA T NOTICE OF HEARING WAS SENT TO THE ADDRESS OF THE ASSESSEE THROUGH RPAD ON 18.6.2015 WHICH WAS NEVER RECEIVED BY ANY OF THE REPRESENTATIVE OF THE ASSESSEE/L - H AND HENCE THE APPEAL REMAINED TO BE ATTENDED ON THE FIXED DATE OF HEARING. THE LD. AR ALSO SUBMI TTED THAT THERE ARE VARIOUS REASONS WHICH RESTRAINED THE L/H OF THE ASSESSEE FROM ATTENDING HEARING OF THE APPEAL AS WELL AS REASONS WERE BEYOND THE CONTROL OF L/H WHICH HAVE BEEN INCORPORATED IN THE MISC. APPLICATION. THE LD. AR, IN SUPPORT OF THESE CON TENTIONS FILED AN AFFIDAVIT OF L/H AND FINALLY PRAYED THAT THE TRIBUNAL EX - PARTE ORDER DATED 2.2.2016 BE RECALLED , THE LEGAL HEIR OF THE ASSESSEE BE TAKEN ON RECORD AND ANOTHER OPPORTUNITY OF HEARING BE GIVEN. 4. THE LD. DR DID NOT CONTROVERT THE FACTUAL A SPECT OF THE MATTER. 5. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS DOCUMENTS RELIED UPON BY THE L/H OF THE ASSESSEE. WE FIND THAT THE EX - PARTE ORDER PASSED BY THE TRIBUNAL IS AGAINST THE DEAD PERSON AND HENCE IN THE EY ES OF LAW IT IS NOT PERMISSIBLE. THEREFORE, WE RECALL OUR ORDER DATED 2.2.2016 AND RESTORE THE APPEAL TO THE REGULAR COURSE OF HEARING. WE ALSO TAKE ON RECORD LEGAL HEIR OF THE ASSESSEE. WE 3 MA NO. 153 /MUM/201 6 ALSO MAKE IT CLEAR THAT SINCE THE APPEAL IS ALREADY FIXED FOR HE ARING ON 13.12.2016 IN THE PRESENCE OF BOTH THE PARTIES NO FORMAL NOTICES WOULD BE SENT TO THE CONCERNED PARTIES. 6 . RESULTANTLY, THE MISC. APPLICATION IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 ND DEC , 201 6 SD SD ( AMIT SHUKLA ) ( RAJESH KUMAR ) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 2 ND 12 . 201 6 SRL,SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT( A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, TRUE COPY / (DY./ASSTT. REG ISTRAR) , / ITAT, MUMBAI