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

MA 159/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4123 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-05-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2001-2002
• Appeal Filed On: 05-03-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI RAJESH KUMAR , ACCOUNTANT MEMBER M.A. NO.1 59 /MUM./2018 ( ARISING OUT OF ITA NO. 3610 / MUM . /201 5 ) ( ASSESSMENT YEAR : 20 0 1 02 ) NEHAL CORPORATION 31, A/B, VASANT VILAS D.D. SATHE MARG MUMBAI 400 004 PAN AADFN1514B . APP LICANT V/S INCOME TAX OFFICER WARD 16(3)(2), MUMBAI . RESPONDENT REVENUE BY : SHRI ASHOK KUMAR ASSESS EE BY : SHRI MANOJ KUMAR SINGH DATE OF HEARING 26.04.2019 DATE OF ORDER 08.05.2019 O R D E R PER SAKTIJIT DEY. J.M. BY WAY OF THE AFORESAID MISC. APPLICATION , THE ASSESSEE SEEKS RECALL OF THE ORDER DATED 9 TH OCTOBER 2017, P ASSED IN ITA NO.3610/ MUM./2015. E XPLAINING THE REASON FOR NON - APPEARANCE FOR WHICH THE APPEAL WAS DECIDED EX - PARTE , IT HAS BEEN SUBMITTED BEFORE US THAT WHEN THE 2 NEHAL CORPORATION APPEAL WAS CALLED FOR HEARING, THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE WAS IN ANOTHER BENCH AND BY THE TIME HE RETURNED TO ATTEND THE HEAR ING THE BENCH HAD COMPLETED ALL THE MATTERS AND HAD RISEN FOR THE DAY. THUS, IT IS SUBMITTED , THERE BEING A REASONABLE CAUSE FOR NON - APPEARANCE, THE APPEAL ORDER SHOULD BE RECALLED IN EXERCISE OF POWER UNDER RULE 24 OF THE INCOME TAX (APPELLATE) TRIBUNAL R ULE S , 1963. 2 . THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED , THE ASSESSEE HAS NOT SHOWN ANY BONAFIDE REASON FOR RECALLING THE EX PARTE ORDER. THEREFORE, HE SUBMITTED , THE APPEAL ORDER SHOULD NOT BE RECALLED AS IT HAS BEEN DECIDED ON MERITS. 3 . WE HAVE CON SIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. NOTABLY, THE APPEAL OF THE ASSESSEE WAS EARLIER DISPOSED OF BY THE TRIBUNAL EX PARTE VIDE ORDER DATED 5 TH JULY 2016. AS COULD BE SEEN FROM THE SAID ORDER, THE TRIBUNAL PROCEEDED TO DECIDE THE AP PEAL EX PARTE , SINCE , IN SPITE OF SERVICE OF NOTICE OF HEARING ISSUED THROUGH REGISTERED POST , NON APPEARED ON BEHALF OF THE ASSESSEE. SUBSEQUENTLY, THE ASSESSEE FILED A MISC. APPLICATION PRAYING FOR RECAL L OF THE ORDER UNDER RULE 24 OF THE RULES AND UPON CONSIDERATION OF SUCH APPLICATION, THE APPEAL ORDER WAS RECALLED AND THE APPEAL WAS RESTORED TO ITS ORIGINAL POSITION. WHEN THE APPEAL WAS AGAIN POSTED FOR HEARING ON 14 TH SEPTEMBER 2017 AFTER SEVERAL ADJOURNMENTS , AGAIN NO ONE 3 NEHAL CORPORATION APPEARED ON BEHALF OF THE AS SESSEE TO REPRESENT THE CASE . EVEN THERE WAS NO APPLICATION SEEKING ADJOURNMENT. THUS, THE TRIBUNAL PROCEEDED TO DISPOSE OF THE APPEAL EX PARTE QUA THE ASSESSEE AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE AND ON THE BASIS OF MATERIAL ON RECORD. THE AFORESAID FACTS HAVE BEEN VERY CLEARLY CAPTURED IN PARA 4 OF THE IMPUGNED APPEAL ORDER. THUS, AS COULD BE SEEN FROM THE FACTS AVAILABLE ON RECORD, THE ASSESSEE IS A CHRONIC AND HABITUAL DEFAULTER INSOFAR AS IT RELATES TO ATTENDING THE TAX LITIGATIONS RELATING TO IT . THE CONTENTION OF THE ASSESSEE THAT LEARNED AUTHORISED REPRESENTATIVE , SINCE , WAS BUSY IN ANOTHER BENCH HE CO ULD NOT REMAIN PRESENT TO ARGUE THE APPEAL , DOES NOT INSPIRE MUCH CONFIDENCE . H AD IT BEEN THE CASE , EITHER THE ASSESSEE OR HIS AUTHORISED REPRESENTATIVE SHOULD HAVE IMMEDIATELY FILED AN APPLICATION EITHER ON THE DATE OF HEARING OF APPEAL ITSELF OR EVEN IN THE IMMEDIATE NEXT DATE, EXPLAINING THE REASON WHICH PREVENTED THE AUTHORISED REPRESENTATIVE IN APPEARING AND ARGUING THE APPEAL. IN THAT EVENT, THE BENCH WOULD NOT HAVE PASSED THE APPEAL ORDER, BUT, COULD HAVE REFIXED THE APPEAL FOR HEARING. THUS, FROM TH E AFORESAID FACTS, IT IS CLEAR THAT THE ASSESSEE HAS NOT BEEN ABLE TO ADVANCE ANY SATISFACTORY REASON IN TERMS OF THE PROVISO TO RULE 24 OF THE RULES WHICH COULD HAVE ENABLE D THE TRIBUNAL TO RECALL THE EX PARTE ORDER. MOREOVER, ONCE ASSESSEES APPEAL WAS D ECIDED EX PARTE EARLIER AND ON ASSESSE ES REQUEST IT WAS RESTORED , THE ASSESSEE SHOULD HAVE BEEN MORE VIGILANT AND DILIGENT IN ATTENDING THE HEARING OF THE APPEAL 4 NEHAL CORPORATION WHICH UNFORTUNATELY IS NOT THE CASE. IN VIEW OF THE AFORESAID, WE REFUSE TO ENTERTAIN THE PRE SENT APPLICATION FILED BY THE ASSESSEE. 4 . IN THE RESULT, MISC. APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN C OURT ON 08.05.2019 SD/ - RAJESH KUMAR ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 08.05.2019 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