MULTI ACT TRADE AND INVESTMENTS PRIVATE LIMITED , MUMBAI V. INCOME TAX OFFICER 2(2)(3), MUMBAI

MA 173/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 7096 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 30-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJAT MITTAL
• Keywords: Opportunity of being heard; Bonafide belief
• Section: 143(3); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH B, MUMBAI BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER MA NO.173/M/2017 (ARISING OUT OF ITA NO.1338/M/2013) ASSESSMENT YEAR: 2009-10 M/S. MULTI ACT TRADE & INVESTMENTS PVT. LTD., 2 ND FLOOR, ICC CHAMBERS II, SAKI VIHAR ROAD, POWAI, MUMBAI 400 072 PAN: AAABCM0157E VS. INCOME TAX OFFICER, WARD-2(2)(3), AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020 (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : SHRI SATISH R. MODY, A.R. REVENUE BY : SHRI RAJAT MITTAL, D.R. DATE OF HEARING : 20.07.2018 DATE OF PRONOUNCEMENT : 06.08.2018 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: BY WAY OF THIS MISCELLANEOUS APPLICATION THE ASSES SEE HAS PRAYED FOR RECALLING THE ORDER OF THE TRIBUNAL DATE D 19.08.2015 PASSED IN ITA NO. 1338/M/2013. 2. THE LD. A.R. SUBMITTED BEFORE THE BENCH THAT THE APPEAL WAS DISMISSED BY THE HONBLE BENCH ON AN APPLICATIO N FILED BY THE ASSESSEE DATED 09.06.2015 WHEREIN THE C.A. OF THE ASSESSEE REQUESTED THE BENCH THAT IN VIEW OF THE OR DER PASSED UNDER SECTION 143(3) READ WITH SECTION 147 OF THE I NCOME TAX ACT, 1961, THE APPEAL MAY KINDLY BE ALLOWED TO BE WI THDRAWN. MA NO.173/M/2017 (ARISING OUT OF ITA NO.1338/M/2013) M/S. MULTI ACT TRADE & INVESTMENTS PVT. LTD. 2 THE LD. A.R. SUBMITTED THAT THE GROUND WHICH INVOLVED IN THE PRESENT APPEAL WAS TO BE TAKEN UP BEFORE THE LD. CIT (A) IN THE APPELLATE PROCEEDINGS TO BE FILED AGAINST THE ORDER PASSED BY THE AO UNDER SECTION 143(3) READ WITH SECTION 147 O F THE ACT AND THUS ONLY UNDER THIS ERRONEOUS BELIEF THE APP LICATION FOR WITHDRAWAL OF APPEAL WAS FILED AND THE HONBLE BENC H ALLOWED THE WITHDRAWAL OF APPEAL BY DISMISSING THE SAME. TH E LD AR FURTHER SUBMITTED THAT THE LD CIT(A) WHILE DECIDING THE APPEAL FILED AGAINST THE ORDER PASSED U/S 143(3) R.W.S. 147 OF THE ACT DISMISSED THE GROUND AS NOT MAINTAINABLE THE LD. A .R. SUBMITTED THAT SINCE THIS IS A MISTAKE ON THE PART OF THE COUNSEL OF THE ASSESSEE WHICH HAS DEPRIVED THE ASSE SSEE FROM SEEKING JUSTICE FROM THIS HONBLE TRIBUNAL AND THIS HAS HAPPENED ONLY BECAUSE OF THE REOPENING OF ASSESSMEN T 2009- 10, ON THE SAME ISSUE WHICH WAS BEFORE THE HONBLE T RIBUNAL. NOW THE LD. CIT(A) WHILE DECIDING THE APPEAL AGAIN ST THE ORDER PASSED U/S 143(3) R.W.S. 147 OF THE ACT DISMI SSED THE SAME GROUND RAISED BY THE ASSESSEE BEFORE THE CIT(A ), AS WAS RAISED BEFORE ITAT IN THE APPEAL WITHDRAWN, AS NOT MAINTAINABLE . THEREFORE THE ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS APPLICATION TO RECALL THE ORDER DATED 19.08.2015. THE LD AR ALSO SUBMITTED THAT THE ASSESS EE HAD WITHDRAWN THE APPEAL ON THE ADVICE OF THE CHARTERED ACCOUNTANT WHOSE AFFIDAVIT HAS ALSO BEEN FILED DURI NG THE HEARING AFFIRMING THAT THE APPEAL HAD BEEN WITHDRAW N ON HIS ADVICE. THE LD AR SUBMITTED THAT IT WAS UNDER BONAFI DE BELIEF THAT APPEAL BEFORE THE ITAT CAN NOT BE PURSUED IN T HE LIGHT OF THE ORDER PASSED BY THE AO U/S 143(3) R.W.S. 147 OF TH E ACT. MA NO.173/M/2017 (ARISING OUT OF ITA NO.1338/M/2013) M/S. MULTI ACT TRADE & INVESTMENTS PVT. LTD. 3 THE LD AR STATED THAT IT WAS A MISTAKE APPARENT ON THE PART OF THE ASSESSEE AND IS COVERED U/S 254(2)OF THE ACT. N OW THE ASSESSEE SHOULD BE ALLOWED TO REVIVE THE APPEAL WHI CH HAS BEEN DISMISSED BY THE HONBLE TRIBUNAL ON AN APPLIC ATION BY THE COUNSEL OF THE ASSESSEE ACTING ON AN ERRONEOUS BELIEF SO THAT ASSESSEE COULD GET JUSTICE BY WAY OF DISPOSAL OF THE SAID APPEAL ON MERIT AFTER HEARING THE ASSESSEE. 3. THE LD. D.R., ON THE OTHER HAND, STRONGLY OBJECTED TO THE ARGUMENTS OF THE LD. A.R. BY POINTING THAT THE WITHDR AWAL OF THE APPEAL WAS REQUESTED BY THE COUNSEL OF THE ASSE SSEE ITSELF AND THEREFORE IT SHOULD NOT BE ALLOWED TO BE RECALL ED OR REVIVED. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL ON RECORD. THE UNDISPUTED FACTS ARE THAT THE APPEAL OF THE ASSESSEE WAS DISMISSED AS WI THDRAWN UPON AN APPLICATION FILED BY THE ASSESSEE BEFORE TH E BENCH TEXT WHEREOF READS AS IN VIEW OF THE ORDER PASSED UNDER SECTION 143(3) READ WITH SECTION 147 OF THE ACT, 19 61 THE ASSESSEE MAY BE ALLOWED TO WITHDRAW THE APPEAL. T HE ISSUE RAISED BY THE ASSESSEE BEFORE THE TRIBUNAL BY WAY O F THE ABOVE APPEAL WAS ALSO A SUBJECT MATTER OF THE REOPE NING PROCEEDING INITIATED UNDER SECTION 147 AGAINST THE ASSESSEE WHICH CULMINATED ULTIMATELY INTO FRAMING OF ASSESSM ENT ORDER UNDER SECTION 143(3) READ WITH SECTION 147 WHICH WA S CHALLENGED BEFORE THE LD. CIT(A). SO ASSESSEES COUNS EL WITHDREW THE APPEAL BEFORE THE TRIBUNAL ON THE BELI EF THAT THE MA NO.173/M/2017 (ARISING OUT OF ITA NO.1338/M/2013) M/S. MULTI ACT TRADE & INVESTMENTS PVT. LTD. 4 ISSUE WOULD BE AGITATED BEFORE THE LD. CIT(A). THE GROUND RAISED BY THE ASSESSEE BEFORE THE CIT(A) WAS DISMIS SED AS NOT MAINTAINABLE IN THE APPEAL FILED AGAINST THE ORDER PASSED UNDER SECTION 143(3) READ WITH SECTION 147 OF THE A CT DATED 24.03.2015. NOW THE ISSUE BEFORE US IS WHETHER THE A SSESSEE SHOULD BE ALLOWED TO REVIVE THE APPEAL SO THAT THE ORDER IS PASSED ON MERIT AFTER HEARING BOTH THE PARTIES OR T HE ASSESSEE HAS LOST ITS RIGHT IN VIEW OF THE APPLICATION OF WI THDRAWAL OF APPEAL FILLED BEFORE THE TRIBUNAL. IN OUR CONSIDERE D VIEW THE MECHANISM OF APPEAL HAS BEEN PROVIDED TO IMPART JUS TICE TO THE AGGRIEVED PARTY AGAINST THE ORDER OF LOWER AUTH ORITY. NOW IF IN THE PRESENT CASE THE ASSESSEE IS DENIED THAT REVIVAL OF APPEAL SUCH RIGHT OF THE ASSESSEE WOULD BE INFRINGE D THOUGH ATTRIBUTABLE TO ITS OWN ACTION. BUT THE FACT OF THE MATTER IS THAT THE ASSESSEE ACTED ON THE ADVICE OF THE COUNSEL UND ER BONAFIDE BELIEF. HAVING CONSIDERED THE FACTS OF T HE CASE WE ARE OF THE VIEW THAT ASSESSEE SHOULD BE GRANTED AN OPPORTUNITY TO BE HEARD ON MERIT AND ACCORDINGLY IN INTEREST OF JUSTICE WE RECALL OF ORDER DATED 19.08.2015 TO BE PO STED FOR HEARING IN THE REGULAR COURSE. 5. THE MISCELLANEOUS APPLICATION FILED BY ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 06.08.2018. SD/- SD/- (JOGINDER SINGH) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: .08.2018. * KISHORE, SR. P.S. MA NO.173/M/2017 (ARISING OUT OF ITA NO.1338/M/2013) M/S. MULTI ACT TRADE & INVESTMENTS PVT. LTD. 5 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ ASSTT. REGISTRAR, ITAT, MUMBAI.