BRIGHT STAR CORPORATION, MUMBAI V. INCOME TAX OFFICER 16(3)(2), MUMBAI

MA 157/MUM/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2393 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2001-2002
• Appeal Filed On: 05-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D G

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RA JESH KUMAR , ACCOUNTANT MEMBER M.A. NO. 15 7 /MUM./2018 ARISING OUT OF ITA NO. 3609/MUM./2015 ( ASSESSMENT YEAR : 20 01 02 ) BRIGHT STAR CORPORATION SHOP NO.3, VASANT VILAS 29 33, BENHAM HALL LANE MUMBAI 400 004 PAN AAEFB0168J . APP LICANT V/S INCOME TAX OFFICER WARD 16 (3)(2), MUMBAI . RESPONDENT ASSESSEE BY : SHRI AKASH KUMAR REVENUE BY : SHRI D.G. PANSARI DATE OF HEARING 24.08 .2018 DATE OF ORDER 09.11.2018 O R D E R PER SAKTIJIT DEY, J.M. B Y WAY OF THIS MISC. APPLICATION, THE ASSESSEE SEEKS RECALL OF ORDER DATED 9 TH OCTOBER 2017, PASSED IN ITA NO.3609/MUM./2015. 2 . IN THE MISC. APPLICATION, THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEES APPEAL WAS HEARD EX PARTE AND DISMISSED DUE TO NON APPEARANCE ON THE DATE OF HEARING. HOWEVER, ON A PERUSAL OF THE APPEAL ORDER PASSED BY THE TRIBUNAL, IT IS VERY MUCH CLEAR THAT THE 2 BRIGHT STAR CORPORATION TRIBUNAL HAS NOT DISMISSED THE A PPEAL OF THE ASSESSEE SIMPLICITE R DUE TO NON APPEARANCE. AS COULD BE SEEN FROM THE OBSERVATION S OF THE TRIBUNAL IN PARA GRAPH 6 OF THE APPEAL ORDER, THE TRIBUNAL AFTER PERUSING THE ORDER OF THE FIRST APPELLATE AUTHORITY AS WE LL AS OTHER MATERIAL ON RECORD WAS CONVINCED THAT THE ASSESSEE HAS NOT PROPERLY AND SATISFACTORILY EXPLAINED THE INORDINATE DELAY IN FILING THE APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. THE TRIBUNAL HAS ALSO RECORDED A FINDING THAT THE ASSESSEE TOOK A C ONSCIOUS DECISION NOT TO FILE APPEAL AGAINST THE ASSESSMENT ORDER AND ONLY ON SECOND THOUGH T FILED THE APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. THUS, IN THE AFORESAID FACTUAL POSITION, IT CANNOT BE SAID THAT THE TRIBUNAL HAS NOT DISPOSED OFF THE PRESEN T APPEAL ON MERIT BUT MERELY DUE TO THE REASON OF NON APPEARANCE BY THE ASSESSEE . AS REGARDS THE REASON OF NON APPEARANCE BEFORE THE TRIBUNAL, AS STATED IN THE MISC. APPLICATION, WE ARE NOT CONVINCED WITH THE SAME. A PERUSAL OF THE ORDER SHEET ENTRY WOULD REVEAL THAT IN THE EARLIER DATES WHEN THE APPEAL WAS FIXED FOR HEARING THE ASSESSEE EITHER SOUGHT ADJOURNMENT OR DID NOT APPEAR . THEREFORE, THE BENCH WAS CONSTRAINED TO ADJOURN THE HEARING OF APPEAL. IF THE LEARNED COUNSEL APPEARING FOR THE ASSESSEE HAD OTHER ENGAGEMENT, HE SHOULD HAVE MADE ALTERNATIVE ARRANGEMENT FOR REPRESENTATION OF THE CASE BEFORE THE BENCH OR COULD HAVE SOUGHT ADJOURNMENT. IN THE AFORESAID VIEW OF THE MATTER, WE HOLD THAT THE ASS ESSEE HAS FAILED TO 3 BRIGHT STAR CORPORATION SATISFY US THAT THE NON APPEARANCE ON THE DATE OF HEARING OF APPEAL WAS DUE TO SUFFICIENT CAUSE. THEREFORE, WE REFUSE TO EXERCISE OUR POWER UNDER RULE 24 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963, TO RECALL THE APPEAL ORDER. 3 . I N THE RESULT, ASSESSEES MISC. APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 09.11.2018 SD/ - RAJESH KUMAR ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 09. 11.2018 COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ( SR. PRIVATE SECRETARY ) ITAT, MUMBAI