BAJAJ BHAVAN OWNERS PREMISES CO-OP. HSG SOCIETY LTD, V. ITO WD 12(3)(1),

MA 190/MUM/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8161 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-04-2012
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 25-03-2011
• Court: TRIBUNAL
• Department Lawyers: P K B MENON
• Assessee Lawyers: A V SONDE
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B BEFORE SHRI D. MANMOHAN (VP) & SHRI R.K. PANDA (AM) M.A. NO. 190/MUM/2011 ARISING OUT OF I.T.A.NO. 1298/MUM/2008 (ASSESSMENT YEAR : 2004-05) BAJAJ BHAWAN OWNERS PREMISES CO-OPERATIVE SOCIETY LTD. 220, JAMNALAL BAJAJ ROAD NARIMAN POINT MUMBAI-400 021. VS. ITO WARD 12(3)(1) ROOM NO. 102 AAYAKAR BHAVAN M.K. ROAD MUMBAI-400 020. APPELLANT RESPONDENT PAN/GIR NO. : AAAJB0644H ASSESSEE BY : SHRI A.V. SONDE DEPARTMENT BY : SHRI P.K.B. MENON DATE OF HEARING : 24.2.2012 DATE OF PRONOUNCEMENT : 17.4.2012 ORDER PER D.MANMOHAN (VP) :- BY THIS APPLICATION THE ASSESSEE-SOCIETY SEEKS RECA LL OF THE EX- PARTE ORDER PASSED BY THE ITAT B BENCH, MUMBAI. 2. IT MAY BE NOTICED THAT ONE CHARTERED ACCOUNTANT BY NAME MR. RAJEEV BENGALI HAS FILED HIS POWER OF ATTORNEY ON 9 .10.2007 IN THE INSTANT CASE WHEREAS IN THE OTHER CASES DIFFERENT COUNSEL A PPEARS TO HAVE FILED POWER OF ATTORNEY. THUS, THIS PARTICULAR CASE WAS D ELINKED FROM THE OTHER GROUP AND POSTED FOR HEARING ON 22.7.2009, ON WHICH DATE NONE APPEARED IN PERSON. WE THEREFORE DISPOSED OF THE AP PEAL EX-PARTE, QUA THE ASSESSEE, WHEREIN THE APPEAL FILED BY THE ASSES SEE WAS DISMISSED AS UNADMITTED. ON 24.3.2010 ASSESSEE-SOCIETY MOVED AN APPLICATION FOR RECALL OF THE ORDER PASSED BY THE TRIBUNAL BUT IN R ESPONSE TO THE NOTICES BAJAJ BHAWAN OWNERS PREMISES CO-OPERATIVE SOCIETY LTD. 2 ISSUED BY THE TRIBUNAL NONE APPEARED FOR THE ASSESS EE. UNDER THE CIRCUMSTANCES THE BENCH DISMISSED THE MISCELLANEOUS APPLICATION, BY OBSERVING AS UNDER :- . THE BENCH HAVING ALREADY TAKEN A CONSCIOUS DEC ISION OF THE REASONS FOR THE DELAY, BY STATING THAT DESPITE A DE FECT MEMO THE ASSESSEE-SOCIETY DID NOT COME FORWARD TO EXPLAIN TH E REASONS FOR THE DELAY, RECONSIDERING THE SAME ISSUE IN A MISC. APPLICATION WOULD AMOUNT TO REVIEW OF THE MATTER WHICH IS NOT P ERMISSIBLE U/S. 254(2) OF THE ACT. SINCE WE ARE SATISFIED THAT THE ASSESSEE HAS NOT GIVEN SATISFACTORY EXPLANATION FOR NON-APPEARANCE O N THE DATE FIXED FOR HEARING AND ALSO BECAUSE OF THE FACT THAT THE A PPEAL WAS DISMISSED AS UNADMITTED ON ACCOUNT OF THE DEFECTS P OINTED OUT IN THE IMPUGNED ORDER, WE DO NOT FIND ANY MERIT IN THE MISC. APPLICATION FILED BY THE ASSESSEE-SOCIETY. ACCORDIN GLY, THE MISC. APPLICATION IS REJECTED. 3. NOW, A FRESH MISCELLANEOUS APPLICATION IS FILED BY THE ASSESSEE WHEREIN IT WAS SUBMITTED THAT THOUGH MR. RAJIV BENG ALIS POWER OF ATTORNEY IS AVAILABLE ON RECORD, MR. GOPAL, ADVOCAT E HAS APPEARED FOR THE ASSESSEE SOCIETY TO SEEK ADJOURNMENT BUT FOR WANT O F POWER OF ATTORNEY IN HIS NAME THIS CASE WAS DELINKED AND DISMISSED AS UN ADMITTED ON THE GROUND THAT SUFFICIENT REASON DID NOT EXIST IN RESP ECT OF DELAY IN FILING THE APPEAL. IN THE MISCELLANEOUS APPLICATION IT WAS SUB MITTED THAT THE ASSESSEE IS A CO-OPERATIVE SOCIETY AND OFFICE BEARE RS ARE WORKING ON HONORARY BASIS. MR. SUBRAMANIAM WAS APPOINTED AS A MANAGER FOR THE SOCIETY WITH EFFECT FROM 16.6.1995 AND HE WAS HANDL ING ALL THE MATTERS RELATED TO THE SOCIETY. FROM DECEMBER, 2007 AND ONW ARDS HE WAS NOT ATTENDING TO THE DUTY PROPERLY; THE SOCIETY HAD TAK EN NOTE OF THE SITUATION AND CALLED FOR EXPLANATION WHEREAS INSTEA D OF GIVING AN EXPLANATION HE SOUGHT TO RESIGN ON 11.1.2008. SOCIE TY COULD NOT APPOINT A NEW MANAGER IN PLACE OF MR. SUBRAMANIAM TILL 10.3 .2008. THIS RESULTED IN DELAY IN FILING THE APPEAL. HOWEVER IN ORDER TO EXPLAIN THE DELAY SUFFICIENT OPPORTUNITY WAS NOT GIVEN BY THE TRIBUNA L BECAUSE THE NOTICE ISSUED BY THE REGISTRY FOR FIXING THE HEARING OF MI SCELLANEOUS APPLICATION HAS NEVER REACHED THE OFFICE BEARERS OF THE SOCIETY ; A NOTICE WAS RECEIVED BY THE PEON AND HE FORGOT TO HAND IT OVER TO THE M ANAGEMENT. BAJAJ BHAWAN OWNERS PREMISES CO-OPERATIVE SOCIETY LTD. 3 4. COUNSEL PLACED BEFORE US AN AFFIDAVIT OF HONORAR Y SECRETARY, MR. VINOD DALMIA, RESIGNATION LETTER OF MR. R. SUBRAMAN IUM AND AFFIDAVIT OF THE PEON OF THE SOCIETY TO SUBMIT THAT THERE WAS A REASONABLE CAUSE IN NOT APPEARING BEFORE THE TRIBUNAL IN RESPONSE TO TH E NOTICE FIXED FOR HEARING THE FIRST MISCELLANEOUS APPLICATION. LEARNE D COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE WERE BONAFIDE CIRCUMS TANCES WHICH SHOULD BE TAKEN INTO CONSIDERATION TO RECALL THE MA TTER IN EXERCISE OF POWER VESTED UNDER RULE 24 OF THE APPELLATE TRIBUNA L RULES. 5. ON THE OTHER HAND LEARNED DEPARTMENTAL REPRESENT ATIVE SUBMITTED THAT THE TRIBUNAL HAS DISMISSED THE APPEA L AS UNADMITTED BY FULLY APPRECIATING THE FACTS OF THE CASE AND ANY AT TEMPT TO RECALL THE ORDER WOULD AMOUNT TO REVIEW OF THE EARLIER DECISION TAKE N BY IT AND HENCE IT IS NOT A FIT CASE FOR RECALL OF THE ORDER. 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED THE RECORD. IN OUR CONSIDERED OPINION, IT IS NOT A FIT CASE TO RECALL THE ORDER PASSED BY THE TRIBUNAL. AT THE OUTSET IT MAY BE NOTICED THAT MR. RAJIVE BENGALI WHO HAS FILED HIS POWER OF ATTORNEY AT THE RELEVANT POINT OF TIME HAS NOT EXPLAINED AS TO WHY HE HAS NOT APPEARE D BEFORE THE TRIBUNAL ON THE DATE FIXED FOR HEARING IN ITA NO. 1 298/MUM/08. EVEN AT THE TIME OF DISPOSAL OF THE FIRST MISCELLANEOUS APP LICATION NONE APPEARED ON BEHALF OF THE ASSESSEE AND DESPITE THE FACT THAT THE APPEAL WAS DISMISSED EARLIER THE MANAGER OF THE SOCIETY HAS NO T TAKEN ANY INTEREST TO BE VIGILANT IN RESPECT OF THE IMPUGNED MATTER. A T ANY RATE, IN OUR CONSIDERED OPINION RECALLING OUR ORDER DATED 23.7.2 009 WOULD AMOUNT TO REVIEW OF THE ORDER SINCE THE BENCH HAS GIVEN SUFFI CIENT REASONS TO DISMISS THE MISCELLANEOUS APPLICATION. UNDER THE CI RCUMSTANCES, MISCELLANEOUS APPLICATION IS HEREBY REJECTED. ORDER HAS BEEN PRONOUNCED ON 17 TH DAY OF APRIL, 2012. SD/- (R.K.PANDA) ACCOUNTANT MEMBER SD/- (D. MANMOHAN) VICE-PRESIDENT DATED : 17 TH APRIL, 2012. BAJAJ BHAWAN OWNERS PREMISES CO-OPERATIVE SOCIETY LTD. 4 COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)-CONCERNED. 4. THE CIT, CONCERNED. 5. THE DR CONCERNED, MUMBAI 6. GUARD FILE BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI PS