UMANG HOUSING PVT. LTD., MUMBAI V. ITO - 4(3)(3), MUMBAI

MA 191/MUM/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5455 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2001-2002
• Appeal Filed On: 18-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGLA
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'F' BENCH, MUMBAI BEFORE SHRI JASON P. BOAZ, ACCOUNTANT MEMBER AND SHRI SANDEEP GOSAIN , JUDICIAL MEMBER MA NO. 191/MUM/2016 (ARISING OUT OF ITA NO. 4683/MUM/2013) (ASSESSMENT YEAR: 2001-02) M/S. UMANG HOUSING PVT. LTD. VS. INCOME TAX OFFICER - 4 ( 3 )( 3 ) PLOT NO. 7, FLAT NO. 201 SHANGRILA KHANDELWAL, LAYOUT EVERSHINE NAGAR, MALAD (W) MUMBAI 400064 AAYAKAR BHAVAN M.K. ROAD MUMBAI 400020 PAN AAACU4581B APPLICANT RESPONDENT APPLICANT BY: SHRI NARESH KUMAR RESPONDENT BY: MS. ANUPAMA SINGLA DATE OF HEARING: 24.03.2017 DATE OF PRONOUNCEMENT: 24.03.2017 O R D E R PER JASON P. BOAZ, A.M. THIS MISCELLANEOUS APPLICATION (MA) BY THE ASSESSEE ARISES OUT OF THE ORDER OF THE TRIBUNAL IN ITA NO. 4683/MUM/2013 DATE D 19.02.2016 FOR A.Y. 2001-02; DISMISSING THE ASSESSEES APPEAL EXPA RTE ON MERITS DUE TO NON-PROSECUTION THEREOF BY THE ASSESSEE. 2. THE FACTS OF THE CASE, BRIEFLY STATED, ARE AS UNDER : - 2.1 THE ASSESSEES APPEAL BEFORE THE TRIBUNAL WAS D IRECTED AGAINST THE ORDER OF THE CIT(A)-8, MUMBAI DATED 25.03.2013 FOR A.Y. 2001-02. THE RECORD INDICATES THAT THE ASSESSEE WAS AFFORDED MAN Y OPPORTUNITIES OF BEING HEARD; BUT NONE APPEARED FOR THE ASSESSEE OR THE BE NCH DID NOT FUNCTION. ON ONE OCCASION THE LEARNED D.R. SOUGHT ADJOURNMENT . FINALLY, WHEN THE CASE WAS LISTED FOR HEARING ON 17.02.2016 AND WHEN THE CASE WAS CALLED, NONE APPEARED ON BEHALF OF THE ASSESSEE. THEREFORE, THE APPEAL WAS DISPOSED OF EXPARTE, ON MERITS, WITH THE ASSISTANCE OF THE L EARNED D.R. AND ON THE BASIS OF MATERIAL AVAILABLE ON RECORD BEFORE US, HO LDING AGAINST THE ASSESSEE. MA NO. 191/MUM/2016 M/S. UMANG HOUSING PVT. LTD. 2 3. AGGRIEVED BY THIS ORDER DATED 19.02.2016 FOR A.Y. 2 001-02, DISMISSING THE ASSESSEES APPEAL EXPARTE, THE ASSES SEE HAS PREFERRED THAT PRESENT MISCELLANEOUS APPLICATION UNDER SECTION 254 (2) OF THE ACT. IN THIS MA THE ASSESSEE HAS SUBMITTED AS UNDER: - THE ABOVE APPEAL WAS DISPOSED OF EX-PARTE BY THE H ON'BLE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH 'F' VIDE THEIR ORDER DATED 19102/2016, AS NO ONE HAD APPEARED ON BEHALF OF THE APPELLANT ON THE DATE OF THE HEARING ON 17/02/2016. THE HON'BLE BENCH CORRECTLY OBSERVED THAT ON MANY O CCASIONS THE BENCH DID NOT FUNCTION AND THE CASE WAS ADJOURNED T HROUGH NOTICE BOARD. FINALLY WHEN THE CASE WAS FIXED FOR HEARING ON 17/02/2016, NONE APPEARED ON BEHALF OF THE APPELLANT. THE HON'B LE BENCH WAS, THEREFORE, PLEASED TO DISMISS THE APPEAL ON THE BAS IS OF MATERIAL ON RECORD. THE APPELLANT BEGS TO PRESENT THIS APPLICATION AND PRAYS FOR RECALLING THE EXPARTE ORDER. THE APPELLANT SUBMITS THAT BECAU SE OF FREQUENT ADJOURNMENT OF THE CASE BECAUSE OF NON-FUNCTIONING OF THE BENCH, THE APPELLANT INADVERTENTLY COULD NOT FULLY TRACK THE V ARIOUS ADJOURNMENTS, MISSED THE LAST DATE OF HEARING AND H ENCE COULD NOT BE PRESENT FOR HEARING. THE APPELLANT CRAVES FORGIVENESS AND PARDON FOR THI S UNINTENDED LAPSE. THE APPELLANTS WISH TO ASSURE THE HON'BLE TRIBUNAL THAT THE APPELLANT HAS EVERY INTENTION TO PURSUE THIS CASE IN APPEAL. IT IS RESPECTFULLY SUBMITTED THAT THIS APPEAL IS AGAINST PENALTY LEVIE D BY THE LD AO U/S 271(1)(C). THE APPEAL OF THE APPELLANT IN QUANTUM A PPEAL HAS BEEN FULLY ALLOWED IN ITA NO 3807/M/2013 DATED 03/02/201 6. ALL THE ADDITIONS, ON WHICH THE PENALTY HAS BEEN LEVIED, HA VE BEEN DELETED. THEREFORE, THE APPELLANT HAD EVERY CHANCE OF SUCCEE DING IN THIS APPEAL ALSO. THEREFORE, THE APPELLANT COULD NOT HAV E ANY REASON NOT TO ATTEND THESE APPEAL PROCEEDINGS. THE APPLICANTS SUB MIT THAT THE FAILURE TO ATTEND ON THE DATE OF HEARING WAS PURELY UNINTENTIONAL AND WAS DUE ONLY TO THESE CIRCUMSTANCES NARRATED ABOVE. THE APPLICANT THEREFORE PRAYS THAT IN THE INTEREST OF SUBSTANTIAL JUSTICE, THE EXPARTE ORDER MAY BE RECALLED AND THE PETITIONER BE ALLOWED ONE FINAL OPPORTUNITY TO PLEAD THE MERITS O F HIS CASE. 4. WE HAVE HEARD THE COUNSELS OF BOTH THE PARTIES AND PERUSED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD. ON A C AREFUL PERUSAL OF THE ASSESSEES SUBMISSION (SUPRA), WE ARE OF THE VIEW T HAT THE ASSESSEE FAILED TO POINT OUT ANY MISTAKE APPARENT FROM THE FACE OF OUR ORDER IN ITA NO. 4683/MUM/2013 DATED 19.02.2016 THAT WOULD REQUIRE R ECTIFICATION. MA NO. 191/MUM/2016 M/S. UMANG HOUSING PVT. LTD. 3 5. IN THE CASE ON HAND, THOUGH IT IS EVIDENT THAT BOTH PARTIES HAVE BEEN PROVIDED ADEQUATE OPPORTUNITY OF BEING HEARD, WHICH THE ASSESSEE HAS FAILED TO AVAIL, THE PLEA HAS BEEN RAISED THAT THE DEFAULTS ARE DUE TO INADVERTENCE OF THE ASSESSEE AND THEIR AUTHORISED R EPRESENTATIVE FOR NOT BEING PRESENT FOR THE HEARING FIXED BEFORE THE BENC H ON THE DATES OF HEARING AND THAT THIS WAS NOT ON ACCOUNT OF ANY DEL IBERATE DEFAULT OR MALAFIDE INTENTION ON THE PART OF THE ASSESSEE. BE THAT AS IT MAY, THE OBJECT OF INCOME TAX PROCEEDINGS IS PRIMARILY THAT THE CORRECT INCOME OF THE ASSESSEE BE BROUGHT TO TAX. NATURAL JUSTICE REQ UIRES THAT THE LIS BETWEEN THE PARTIES SHOULD BE DECIDED ON MERITS, AF TER PROVIDING DUE AND ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH PARTIES . THE PROVISO TO RULE 24 OF THE I.T. RULES, 1962 (IN SHORT THE RULES) S TATES THAT WHERE AN APPEAL HAS BEEN DISPOSED OFF EXPARTE FOR THE DEFAUL T BY THE APPELLANT, IN THIS CASE THE ASSESSEE, IF THE ASSESSEE APPEARS AFT ERWARDS AND SATISFIES THE TRIBUNAL THAT THERE WAS SUFFICIENT CAUSE FOR HE RE NON-APPEARANCE WHEN THE APPEAL WAS CALLED FOR HEARING, THE TRIBUNA L SHALL MAKE AN ORDER SETTING ASIDE THE EXPARTE ORDER AND RESTORE THE APP EAL. 6. IN THE FACTUAL MATRIX AND CIRCUMSTANCES OF THE CASE , ON HAND, WE ARE OF THE CONSIDERED VIEW THAT IN TERMS OF THE PROVISO TO RULE 24 OF THE RULES, THE ENDS OF JUSTICE WOULD BE MET IF THE ASSESSEE IS PROVIDED WITH ONE MORE OPPORTUNITY OF HEARING, SO THAT THIS CASE BE DISPOS ED OFF ON MERITS. IN OUR VIEW, IF THIS MA IS ALLOWED AND THE APPEAL OF THE A SSESSEE IS RESTORED, NO PREJUDICE WOULD BE CAUSED TO THE INTEREST OF REVENU E, AS LEGITIMATE TAXES DUE ON THE ASSESSEES CORRECT INCOME WILL BE COLLEC TED. WHEREAS, IF THE CONTRARY VIEW IS TAKEN THE ASSESSEE MAY BE PUT TO G REAT HARDSHIP AND DIFFICULTY. KEEPING IN VIEW THE DISCUSSION ABOVE, W E ALLOW THE ASSESSEES MA, INVOKING THE PROVISIONS OF THE PROVISO TO RULE 24 OF THE RULES AND ACCORDINGLY SET ASIDE OUR EXPARTE ORDER IN ITA NO. 4683/MUM/2013 DATED 19.02.2016 AND RESTORE THE APPEAL TO BE HEARD ON ME RITS. 7. THE APPEAL IS TO BE FIXED FOR HEARING ON MERITS ON 08.05.2017. REGISTRY WILL ISSUE NOTICES TO BOTH PARTIES FOR HEA RING ACCORDINGLY. MA NO. 191/MUM/2016 M/S. UMANG HOUSING PVT. LTD. 4 8. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH MARCH, 2017. SD/ - SD/ - (SANDEEP GOSAIN) (JASON P. BOAZ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 24 TH MARCH, 2017 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -8, MUMBAI 4. THE CIT - 4, MUMBAI 5. THE DR, F BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.