PAWAN RAJKUMAR DROLIA, MUMBAI V. INCOME TAX OFFICER 25(3)(3), MUMBAI

MA 167/MUM/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 7077 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 23-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAM TIWARI
• Assessee Lawyers: KUSHAL SHAH
• Keywords: Principle of natural justice
• Section: 143(3)

Judgement Text

C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER MA NO. 167/MUM/2018 ARISING OUT OF ITA NO. 4850/MUM/2012 ASSESSMENT YEAR 2009 - 2010 SHRI PAWAN RAJKUMAR DROLIA, 8,PREMSONS SHOPPING CENTRE, TAHIRA COMPOUND, CAVES ROAD, JOGESHWARI(EAST) MUMBAI - 400060 PAN AEDPD6516R V. ITO - 25(3)(3) , C - 11, ROOM NO. 304, PRATYAKSHKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA(EAST) MUMBAI - 400051 APPLICANT RESPONDENT APPLICANT BY SHRI. KUSHAL SHAH RESPONDENT BY SHRI RAM TIWARI (DR) DATE OF HEARING : 27 - 07 - 2018 DATE OF PRONOUNCEMENT : 03 - 08 - 2018 ORDER PER RAMIT KOCHAR, ACCOUNTANT MEMBER THE ASSESSEE HAS FILED THIS MISCELLANEOUS A PPLICATION (MA) SEEKING RECALLING OF APPELLATE ORDER DATED 23.06.2017 IN ITA NO. 4850/MUM/2012 FOR ASSESSMENT YEAR 2009 - 10 PASSED BY INCOME - TAX APPELLATE TRIBUNAL(HEREINAFTER CALLED THE TRIBUNAL) ,C - BENCH,MUMBAI . IT IS THE CLAIM OF THE ASSESSEE THAT THE ASSESSEE SHIFTED RESIDENCE TO SILVAS S A FROM MUMBAI AND TO EVIDENCE THE SAME THE COPY OF LEASE AGREEMENT OF JANUARY 2016 IS PLACED IN PAPER BOOK FILED WITH TRIBUNAL (PAGE 18 - 23 /PB ) AND IT IS CLAIMED THAT THE ASSESSEE DID NOT RECEIVED NOTIC ES FROM THE TRIBUNAL DURING THE RELEVANT PERIOD AND HENCE THE ASSESSEE COULD NOT ENTER APPEARANCES BEFORE THE TRIBUNAL WHEN THE APPEAL WA S FINALLY HEARD ON 16.05.2017 . IT WAS SUBMITTED THAT T HE ORDER PASSED BY THE TRIBUNAL WAS AN EX - PARTE ORDER WHICH WAS PASSED AFTER HEARING LD. DR IN THE ABSENCE OF ASSESSEE S COUNSEL . IT IS MA NO. 167/MUM/2018 ARISING OUT OF ITA NO. 4850/MUM/2012 2 CLAIMED THAT THE ASSESSEE WAS CONDEMNED UNHEARD AND PRINCIPLES O F NATURAL JUSTICE AS ARE ENSHRINED UNDER DOCTRINE OF AUDI ALTEM PARTEM STOOD BREACHED. T HE ASSESSEE AND/OR HIS COUNSEL ENTERED APPEARANCE DURING THE COURSE OF HEARING IN THE APPEAL BEFORE TRIBUNAL WHICH STARTED FROM 04.09.2013 TILL 22 - 09 - 2016 FROM TIME TO TIME WHEN THE APPEAL WAS FIXED FOR HEARING BEFORE THE TRIBUNAL . THEREAFTER , WHEN THE APPEAL WAS FIXED BEFORE THE TRIBUNAL FOR HEARING ON 15.11.2016, 28 .12.2016, 14.03.2017 AND FINALLY ON 16.05.2017 , THE ASSESSEE AND/OR HIS COUNSEL DID NOT ATTEND HEARING BEFORE THE TRIBUNAL . THE ASSESSEE HAS CONTENDED THAT ASSESSEE WAS SUFFER ING FROM DEPRESSION DUE TO FAMILY ISSUES AND ENTERED INTO MOU CUM DEED OF DIVORCE WITH HIS WIFE ON 15 - 06 - 2011 WHERE IN HE SEPARATED FROM HIS WIFE AND IT WAS PROPOSED IN THE SAID MOU CUM DEED OF DIVORCE DATED 15 - 06 - 2011 TO FILE PETITION WITH FAMILY COURT FOR DIVORCE . IT WAS CONTENDED THAT THE ASSESSEE WAS LI VING SECLUDED LIFE UNDERGOING MEDIC ATION AND ALSO IT SHIFTED HIS RESIDENCE FROM MUMBAI TO SILVASSA. THE ASSESSEE HAS ALSO CONTENDED THAT DUE TO MASSIVE FIRE IN THE BUSINESS PLACE FROM WHERE HIS COMPANIES USED TO SEND MATERIAL IN NOVEMBER 2015 , THE ASSESSEE SUFFERED HUGE LOSSES WHICH ALSO AFFECTED ADVERSELY HIS WORKING. ALL THESE AVERMENTS AS DETAILED ABOVE ARE SUP PORTED BY AN AFFIDAVIT DATED 11 TH JULY 2018 WHICH IS FILED ALONG WITH THIS MISCELLANEOUS APPLICATION AND IS PLACED IN FILE. THE LD. DR SUBM ITTED THAT TRIBUNAL HAS PASSED A N EX - PARTE ORDER DATED 23 - 06 - 2017 AFTER HEARING LD DR IN THE ABSENCE OF ASSESSEE , BU T THE FACTS ARE DISCUSSE D BY TRIBUNAL ON MERITS IN THE SAID ORDER , THUS THE ORDER OF THE TRIBUNAL DATED 23 - 06 - 2017 IS NOT SUFFERING FROM ANY MISTAKES APPARENT FROM RECORD WHICH COULD BE CORRECTED BY TRIBUNAL VIDE THIS MA WITHIN LIMITED MANDATE AS ARE CONT AIN ED IN THE PROVISION S OF S ECTION 254(2) OF THE ACT.THE LD. DR LEFT THE MATTER TO BE DECIDED BY THE BENCH. MA NO. 167/MUM/2018 ARISING OUT OF ITA NO. 4850/MUM/2012 3 2. WE HAVE CONSIDER ED RIVAL CONTENTION S AND PERUSED THE MATERIAL ON RECORD . W E HAVE OBSERVED THAT THE ASSESSEE FILED A N APPEAL WITH THE TRIBUNA L AGAINST AN APPELLATE ORDER DATED 07.05.2012 PASSED BY LEARNED C OMMISSIONER OF I NCOME T AX (A PPEALS ) - 35,MUMBAI , WHICH APPEAL BEFORE LEARNED CIT(A) WAS FILED BY THE ASSESSEE AGAINST AN ASSESSMENT ORDER DATED 21.12.2011 PASSED BY THE ASSESSING OFFICER U/S. 143(3) OF THE INCOME - TAX ACT ,1961 . THE APPEAL WITH THE TRIBUNAL WAS FILED BY ASSESSEE ON 24 TH JULY 2012. THE HEARING IN THE APPEAL BEFORE TRIBUNAL STARTED FROM 04.09.2013 AND TILL 22 - 09 - 2016 , THE ASSESSEE WAS ENTERING APPEARANCE FROM TIME TO TIME E ITHER THROUGH LETTERS FILED FOR ADJOURNMENT BEFORE THE TRIBUNAL OR THROUGH ITS COUNSEL. THEREAFTER, WHEN THE APPEAL WAS FIXED BEFORE THE TRIBUNAL FOR HEARING ON 15.11.2016, 28.12.2016, 14.03.2017 AND FINALLY ON 16.05.2017, THE ASSESSEE AND/OR HIS COUNSEL DID NOT ATTEND HEARING BEFORE THE TRIBUNAL. THE ASSESSEE HAS FILED AN AFFIDAVIT DATED 11.07.2018 BEFORE THE TRIBUNAL AND CONTENDED THAT ASSESSEE WAS SUFFERING FROM DEPRESSION DUE TO FAMILY ISSUES AND ENTERED INTO MOU CUM DEED OF DIVORCE WITH HIS WIFE ON 1 5 - 06 - 2011 WHERE IN HE SEPARATED FROM HIS WIFE AND IT WAS PROPOSED IN THE SAID MOU CUM DEED OF DIVORCE DATED 15 - 06 - 2011 TO FILE PETITION WITH FAMILY COURT FOR DIVORCE . IT WAS CONTENDED THAT THE ASSESSEE WAS LIVING SECLUDED LIFE UNDERGOING MEDIC ATION AND A LSO IT SHIFTED HIS RESIDENCE FROM MUMBAI TO SILVASSA WEF JANUARY 2016 . THE ASSESSEE HAS FILED COPY OF LEASE DEED OF JANUARY 2016 TO EVIDENCE THAT HE SHIFTED TO SILVASSA FROM MUMBAI. THE TRIBUNAL HAS SENT ONE LETTER RPAD TO ASSESSEE ON 10.04.2017 WHICH RETU RNED UN - SERVED BY POSTAL AUTHORITIES AND THE SAID ORIGINAL ENVELOP IS PLACED IN FILE. THE ASSESSEE HAS ALSO CONTENDED THAT DUE TO MASSIVE FIRE IN THE BUSINESS PLACE FROM WHERE HIS COMPANIES USED TO SEND MATERIAL IN NOVEMBER 2015 , THE ASSESSEE SUFFERED HUG E LOSSES WHICH ALSO AFFECTED ADVERSELY HIS WORKING. ALL THESE AVERMENTS AS MA NO. 167/MUM/2018 ARISING OUT OF ITA NO. 4850/MUM/2012 4 DETAILED ABOVE ARE SUPPORTED BY AN AFFIDAVIT DATED 11 TH JULY 2018 WHICH IS FILED ALONG WITH THIS MISCELLANEOUS APPLICATION AND IS PLACED IN FILE. THUS, IN NUT - SHELL IT IS SUBMITTED BY THE ASSESSEE THAT DUE TO CUMULATIVE EFFECT OF ALL THESE ADVERSE CIRCUMSTANCES SURROUNDING ASSESSEE, IT AFFECTED HIS NORMAL DAY TO DAY FUNCTIONING WHICH LED TO HIS NON APPEARANCE BEFORE THE TRIBUNAL. THE LEARNED COUNSEL FOR THE ASSESSEE WHO APPEARED BEF ORE US HAS ALSO MADE STATEMENT BEFORE THE BENCH THAT EVEN THEY WERE ALSO NOT AWARE OF THE WHEREABOUTS OF THE ASSESSEE AT THAT RELEVANT TIME WHICH WAS ONE OF THE REASONS FOR THEIR ALSO NOT COMING FORWARD TO ARGUE THE MATTER AT THAT RELEVANT TIME WHEN THE AP P E AL WAS FINALLY HEARD BY TRIBUNAL. THE TRIBUNAL HAS DECIDED THE APPEAL VIDE ORDERS DATED 23.06.2017 IN ITA NO. 4850/M UM/2012 FOR AY 2009 - 10 , WHEREIN APPEAL OF THE ASSESSEE STOOD DISMISSED BY THE TRIBUNAL. THIS WAS AN EX - PARTE ORDER PASSED BY TRIBUNAL AFTER HEARING LEARNED DR AND THE SAID ORDER WAS PASSED BY TRIBUNAL IN THE ABSENCE OF ASSESSEE AND / OR HIS COUNSEL . A FTER CONSIDERING ENTIRE FACTUAL MATRIX OF THE CASE AND IMPACT OF CUMULATIVE REASONS /CIRCUMSTANCES CITED BY THE ASSESSEE DULY SUPPORTED BY AN AFFIDAVIT, W E ARE OF CONSIDER ED VIEW THAT AN EX - PARTE ORDER OF THE TRIBUNAL DATED 23.06.2017 IN ITA NO. 4850/MUM/2012 FOR AY 2009 - 10 NEED ED TO BE RECALLED IN THE INTEREST OF JUSTICE AND THE APPEAL IN ITA NO. 4850/MUM/2012 NEEDED TO BE PLACED BEFO RE THE REGULAR BENCH OF THE TRIBUNAL FOR REGULAR HEARING FOR ADJUDICATION OF ALL THE ISSUES A FRESH ON MERITS IN ACCORDANCE WITH LAW . THE REGISTRY IS DIRECTED TO ISSUE NOTICES TO BOTH THE PARTIES FIXING THE APPEAL BEFORE REGULAR BENCH FOR REGULAR HEARING. THE ASSESSEE ON ITS PART , HOWEVER, DID NOT NOTIFIED TO THE TRIBUNAL ABOUT HIS CURRENT ADDRESS AFTER MOVING TO SILVASSA IN JANURAY 2016 AND HAS NO T FILED REVISED FORM NO. 36 WHICH TH E ASSESSEE WAS REQUIRED TO FILE AS PER RULE 9 - A OF INCOME - TAX (APPELLATE TRIBUNAL) RULES, 196 3 , AND HENCE WE ARE INCLINED TO IMPOSE COST OF MA NO. 167/MUM/2018 ARISING OUT OF ITA NO. 4850/MUM/2012 5 RS. 2000/ - (RS TWO THOUSAND ONLY) ON THE ASSESSEE FOR THIS DEFAULT IN NOT INTIMATING TRIBUNAL ABOUT CHANGE OF ADDRESS WHICH COSTS WILL SHALL BE DEPOSIT ED BY ASSESSEE WITH PRIME MINISTER NATIONAL RELIEF FUND AND THE SAME SHALL BE INTIMATED AFTER DEPOSIT TO THE TRIBUNAL AS WELL AS TO THE R EVENUE WITHIN ONE WEEK FROM THE DATE OF THIS ORDER , BY SUBMITTING PAID CHALLANS . THIS ORDER IMPOSING COST WAS ANNOUNCED IN OPEN COURT AT THE TIME OF HEA RING IN THE PRESENCE OF BOTH THE RIVAL PARTIES. THE ASSESSEE COUNSEL HAS AGREED/CONSENTED TO DEPOSIT THE COST IMPOSED OF RS. 2000/ - WITH PRIME MINISTER NATIONAL RELIEF FUND WITHIN PERIOD OF ONE WEEK FROM THE DATE OF THIS ORDER. WE ORDER ACCORDINGLY. 3. THIS M.A. NO. 167/MUM/2018 ARISING OUT OF APPEAL IN ITA NO. 4850/MUM/2012 FOR AY 2009 - 10 IS ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 0 3 .0 8 .2018 0 3 .08 .2018 S D / - S D / - (SAKTIJIT DEY) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 0 3 .08 .2018 COPY TO NISHANT VERMA SR. PRIVATE SECRETAR Y 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) CONCERNED, MUMBAI 4 . THE CIT - CONCERNED, MUMBAI 5 . THE DR BENCH, 6 . MASTER FILE MA NO. 167/MUM/2018 ARISING OUT OF ITA NO. 4850/MUM/2012 6 // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI