SUSHIL S. JHUNJHUNWALA (HUF), MUMBAI V. Income Tax OFFICER 19(1)(4), MUMBAI

MA 174/MUM/2017

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 5488 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2002-2003
• Appeal Filed On: 30-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AJAY R SINGH

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, A MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER M.A. NO.174 TO 180/MUM/2017 (ARISING OUT OF ITA NOS.3001 TO 3007/MUM/2015) ASSESSMENT YEARS: 2002-03 TO 2008-09 SUSHIL S JHUNJHUNWALA (HUF), FLAT NO.41/42, 4TH FLOOR, MEGHNA APT. S.V.ROAD, SANTACRUZ (W), MUMBAI-400054 / VS. INCOME TAX OFFICER- 19(1)(4), MUMBAI ( !' # /ASSESSEE) ( $ / REVENUE) PAN. NO. AAJHS5267C $% & # ' / DATE OF HEARING : 22/09/2017 & # ' / DATE OF ORDER: 26/09/2017 !' # ! / ASSESSEE BY SHRI AJAY R. SINGH $ ! / REVENUE BY SHRI RAJAT MITTAL-DR M.A. NO.174 TO 180/MUM/2017 (ARISING OUT OF ITA NO. 3001 TO 3007/MUM/2015 SUSHIL S JHUNJHUNWALA (HUF) 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THIS IS A BUNCH OF SEVEN MISCELLANEOUS APPLICATIONS , FILED BY THE ASSESSEE, WITH A REQUEST TO RECALL CON SOLIDATED EX-PARTE ORDER DATED 26/07/2016. 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSE E, SHRI AJAY R. SINGH, EXPLAINED THAT DUE TO THE DEATH OF THE SON OF KARTA OF ASSESSEE HUF, THE KARTA WAS NOT IN A STABLE BENT OF MIND AND FURTHER A DIVORCE PETITION WAS PENDING/GOING ON IN THE COURT WITH RESPECT TO HIS D AUGHTER, THEREFORE, HE COULD NOT APPEAR BEFORE THIS TRIBUNAL ON THE APPOINTED DATE I.E. 19/07/2016. IT WAS PRAYED THAT A LENIENT VIEW MAY BE TAKEN AND THE ASSESSEE MAY BE P ROVIDED OPPORTUNITY TO REPRESENT ITS CASE. A PASSIONATE PLE A WAS MADE BY THE LD. COUNSEL THAT THE OVERALL CIRCUMSTAN CES CLEARLY INDICATES THAT THE APPEALS MAY BE HEARD AFR ESH DUE TO THE REASON MENTIONED ABOVE. ON THE OTHER HAND, S HRI RAJAT MITTAL, LD. DR, EXPLAINED THAT IT WAS THE DUT Y OF THE ASSESSEE TO MAKE EFFECTIVE REPRESENTATION BEFORE TH IS TRIBUNAL ON THE APPOINTED DATE. M.A. NO.174 TO 180/MUM/2017 (ARISING OUT OF ITA NO. 3001 TO 3007/MUM/2015 SUSHIL S JHUNJHUNWALA (HUF) 3 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS NOT ED THAT EVEN BEFORE THE LD. COMMISSIONER OF INCOME TAX (APP EAL), THE ASSESSEE COULD NOT APPEAR AND THE IMPUGNED ORDE RS WERE PASSED EX-PARTE. CONSIDERING THE EXPLANATION OF THE ASSESSEE, WE ARE OF THE VIEW THAT JUDICIARY IS RESP ECTED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TE CHNICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUS TICE AND IS EXPECTED TO DO SO. THE HONBLE APEX COURT IN A C ELEBRATED DECISION IN COLLECTOR, LAND ACQUISITION VS MST. KAT IJI & ORS. 167 ITR 471(SC), THOUGH ON CONDONATION OF DELAY, OP INED THAT WHEN TECHNICAL CONSIDERATION AND SUBSTANTIAL J USTICE ARE PITTED AGAINST EACH OTHER, THE COURTS ARE EXPEC TED TO FURTHER THE CAUSE OF SUBSTANTIAL JUSTICE. THIS IS FOR THE REASON THAT AN OPPOSING PARTY, IN A DISPUTE, CANNOT HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A N ON- DELIBERATE DELAY(IN THIS CASE NON-APPEARANCE). THE REFORE, IT FOLLOWS THAT WHILE CONSIDERING MATTERS RELATING TO THE CONDONATION OF DELAY/EXPLAINED REASON OF NON-APPEAR ANCE, JUDICIOUS AND LIBERAL APPROACH IS TO BE ADOPTED. I F SUFFICIENT CAUSE IS FOUND TO EXIST, WHICH IS BONA-FIDE ONE, AN D NOT DUE M.A. NO.174 TO 180/MUM/2017 (ARISING OUT OF ITA NO. 3001 TO 3007/MUM/2015 SUSHIL S JHUNJHUNWALA (HUF) 4 TO NEGLIGENCE OF THE ASSESSEE, THE DELAY/NON-APPEAR ANCE NEEDS TO BE CONDONED IN SUCH CASES. THE EXPRESSION SUFFICIENT CAUSE IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY LAW IN A MEANINGFUL MANNER, WHICH SUB-SERVES THE END OF JUSTICE- THAT BEING THE LIFE PURPOSE OF THE EXISTENCE OF THE INSTITUTION OF THE COURTS. WHEN SUBSTANTIAL JU STICE AND TECHNICAL CONSIDERATION ARE PITTED AGAINST EACH OTH ER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERR ED. THE HONBLE APEX COURT IN VEDABHAI VS SANTARAM 253 ITR 798 OBSERVED THAT INORDINATE DELAY CALLS OF CAUTIOUS AP PROACH. THIS MEANS THAT THERE SHOULD BE NO MALAFIDE OR DILA TORY TACTICS. SUFFICIENT CAUSE SHOULD RECEIVE LIBERAL C ONSTRUCTION TO ADVANCE SUBSTANTIAL JUSTICE. THE HONBLE APEX C OURT IN 167 ITR 471 OBSERVED AS UNDER:- 3. THE LEGISLATURE HAS CONFERRED THE POWER TO COND ONE DELAY BY ENACTING SECTION 51 OF THE LIMITATION ACT OF 196 3 IN ORDER TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO PART IES BY DISPOSING OF MATTERS ON DE MERITS. THE EXPRESSION SUFFICIENT CAUSE EMPLOYED BY THE LEGISLATURE IS ADEQUATELY EL ASTIC TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUBSERVES THE ENDS OF JUSTICE THAT BEING THE LIFE-PURPOSE OF THE EXISTENCE OF THE INSTITUTION OF COURTS. IT I S COMMON KNOWLEDGE THAT THIS COURT HAS BEEN MAKING A JUSTIFI ABLY LIBERAL M.A. NO.174 TO 180/MUM/2017 (ARISING OUT OF ITA NO. 3001 TO 3007/MUM/2015 SUSHIL S JHUNJHUNWALA (HUF) 5 APPROACH IN MATTERS INSTITUTED IN THIS COURT. BUT T HE MESSAGE DOES NOT APPEAR TO HAVE PERCOLATED DOWN TO ALL THE OTHERS COURTS IN THE HIERARCHY. 2.2. FURTHERMORE, THE HON'BLE SUPREME COURT IN THE CASE OF VEDABAI ALIA VAIJAYANATABAI BABURAO PATIL V S. SHANTARAM BABURAO PATIL 253 ITR 798 HELD THAT THE C OURT HAS TO EXERCISE THE DISCRETION ON THE FACTS OF EACH CASE KEEPING IN MIND THAT IN CONSTRUING THE EXPRESSION SUFFICIENT CAUSE, THE PRINCIPLE OF ADVANCING SUBSTANTIAL JUST ICE IS OF PRIME IMPORTANCE. THE COURT HELD THAT THE EXPRESSIO N SUFFICIENT CAUSE SHOULD RECEIVE LIBERAL CONSTRUCT ION. THE RATIO LAID DOWN IN AFORESAID CASES PRESSES OUR CONS CIOUS TO RECALL THE EX-PARTE ORDER, THEREFORE, WITHOUT GOING INTO MUCH DELIBERATION AND CONSIDERING THE REASONS OF NON-APP EARANCE, WE TAKE A LENIENT VIEW AND RECALL THE EX-PARTE ORDE R OF THE TRIBUNAL DATED 26/07/2016. THE ASSESSEE IS DIRECTE D TO APPEAR BEFORE THIS TRIBUNAL FOR HEARING OF MAIN APP EALS ON 11/12/2017. ACCORDINGLY, THE REGISTRY OF THIS TRIB UNAL IS DIRECTED TO FIX THE APPEALS OF THE ASSESSEE FOR HEA RING ON 11/12/2017. THIS WILL BE LAST OPPORTUNITY TO THE A SSESSEE. M.A. NO.174 TO 180/MUM/2017 (ARISING OUT OF ITA NO. 3001 TO 3007/MUM/2015 SUSHIL S JHUNJHUNWALA (HUF) 6 FINALLY, THE MISCELLANEOUS APPLICATIONS OF THE ASSE SSEE ARE ALLOWED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE LD. REPRESENTATIVES OF BOTH SIDES A T THE CONCLUSION OF THE HEARING ON 22/09/2017. SD/- SD/- ( RAJESH KUMAR ) (JOGINDER SINGH) '!# / ACCOUNTANT MEMBER $!# /JUDICIAL MEMBER % MUMBAI; ) DATED : 26/09/2017 F{X~{T? P.S / /. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. +,-. / THE APPELLANT (RESPECTIVE ASSESSEE) 2. /0-. / THE RESPONDENT. 3. 1 1 2# ( +, ) / THE CIT, MUMBAI. 4. 1 1 2# / CIT(A)- , MUMBAI, 5. 4$5 /# , 1 +,' + 6 , % / DR, ITAT, MUMBAI 6. 7! 8% / GUARD FILE. ! / BY ORDER, 04,# /# //TRUE COPY// /! (DY./ASSTT. REGISTRAR) , % / ITAT, MUMBAI