ARCHANA AJIT VAIDYA, MUMBAI V. INCOME TAX OFFICER - 21(1)(1), MUMBAI

MA 200/MUM/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 9853 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 11-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V JENARDHANAN
• Keywords: Principle of natural justice; Bonafide belief; Bonafide mistake

Judgement Text

1 A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER MA NO. 200/MUM/2017 ARISING OUT OF ITA NO. 5797/MUM/2013 ASSESSMENT YEAR 2009 - 2010 SMT. ARCHANA AJIT VAIDYA FLAT NO. 9, PLOT NO. 51, SHREE GURU CHHAYA SOCIETY, TEJPAL SCHEME ROAD 2, VILE PARLE(E), MUMBAI 400057 PAN ABSPV8586B V. ITO - 21(1)(1) C - 10, PRATYAKSHAKAR BHAVAN BANDRA KURLA COMPLEX BANDRA, MUMBAI - 400051 APPLICANT RESPONDENT APPLICANT BY SHRI. NEEL KHANDELWAL RESPONDENT BY SHRI V. JENARDHANAN (CIT DR) DATE OF HEARING : 27 - 07 - 2018 DATE OF PRONOUNCEMENT : 2 6 - 09 - 2018 ORDER PER RAMIT KOCHAR, ACCOUNTANT MEMBER THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICATION BEING MA NO. 200/MUM/2017 ARISING OUT OF APPEAL IN ITA N. 5797/MUM/2013 SEEKING RECALL OF AN ORDER PASSED BY INCOME - TAX APPELLATE TRIBUNAL, A - BENCH, MUMBAI (HEREINAFTER CALLED THE TRIBUNAL ) IN ITA NO. 5797/MUM/2013 VIDE ORDER S DATED 07.11.2016 FOR ASSESSMENT YEAR 2009 - 10 , WHEREIN THE ISSUE WAS DECIDED AGAINST THE ASSESSEE IN THE AFORESAID ORDER OF TRIBUNAL D ATED 07.11.2016 . THE APPEAL IN THIS CASE WAS FIRST FIX ED FOR HEARING BEFORE THE BENCH ON TWO OCCASION ON 10 - 02 - 2015 AND 12 - 08 - 2015 WHEN THE BENCH DID NOT FUNCTION. THE APPEAL WAS THEREAFTER FIXED FOR HEARING BEFORE THE BENCH ON 03.03 .2016 AND NONE APPEARED ON BEHALF OF THE ASSESSEE. THE BENCH ISSUED DIRECTIONS TO REGISTRY ON 3 RD MARCH 2016 FOR ISSUANCE OF NOTICE TO ASSESSEE THROUGH REGISTERED POST WITH ACKNOWLEDGEMENT DUE (RPAD) . THE NEXT DATE OF HEARING WAS FIXED FOR 05 TH OCTOBER 2016. THE REGISTRY SENT TH E NOTICE THROUGH REGISTERED POST ACKNOWLEDGEMENT DUE (RPAD) WHICH WAS DULY SERVED ON THE ASSESSEE ON 15 TH APRIL 2016 INTIMATING NEXT DATE OF HEARING TO MA NO. 200/MUM/2017 ARISING OUT OF ITA NO. 5797/MUM/2013 2 BE 05 TH OCTOBER 2016 BEFORE THE A - BENCH, ITAT - MUMBAI. THE ACKNOWLEDGED RECEIPT SIGNED BY THE ASSESSEE RE CEIVED BY REGISTRY FROM POSTAL AUTHORITIES IS PLACED ON RECORD. WHEN THE APPEAL CAME UP FOR HEARING BEFORE THE BENCH ON 05 TH OCTOBER 2016, NONE APPEARED FOR ASSESSEE WHILE REVENUE WAS REPRESENTED BY LD. DR. EFFECTIVELY IT IS THE SECOND HEARING BEFORE T HE TRIBUNAL ON 05.10.2016 , FIRST EFFECTIVE DATE OF HEARING BEING 03 RD MARCH 2016. WHEN THE APPEAL WAS CALLED FOR HEARING ON 05 TH OCTOBER 2016, T HE APPEAL WAS DECIDED EX - PARTE BY TRIBUNAL IN THE ABSENCE OF ASSESSEE AFTER HEARING THE LD. DR VIDE ORDERS DATED 07 TH NOVEMBER 2016 . THE GROUNDS OF APPEAL WERE ADJUDICATED BY TRIBUNAL AGAINST THE ASSESSEE VIDE ORDERS DATED 07.11.2016 IN ITA NO. 5797/MUM/2013. THE ASSESSEE HAS NOW FILED THIS MA ON 11 - 04 - 2017 WITH TRIBUNAL WHICH IS FILED WITHIN A PER IOD OF SIX MONTHS AS IS PROVIDED U/S 254(2) OF THE 1961 ACT. THE ASSESSEE IS SEEKING RECALL OF AN EX - PARTE ORDER PASSED BY TRIBUNAL IN THE ABSENCE OF ASSESSEE ON THE GROUND THAT PRINCIPLE OF NATURAL JUSTICE WAS NOT ADHERED TO AND THE ASSESSEE DID NOT GET C HANCE TO EXPLAIN ITS POSITION BEFORE THE TRIBUNAL. IT IS THE CLAIM OF THE LD. CO UNSEL FOR THE ASSESSEE THAT AUTHORISED REPRESENTATIVE WAS APPOINTED BY THE ASSESSEE TO REPRESENT ASSESSEE BEFORE THE TRIBUNAL BUT DUE TO OVERSIGHT IN MAKING ENTRIES IN HIS DI ARY, THE DATE COULD NOT BE NOTED IN THE DIARY AND HENCE THE AR COULD NOT APPEAR BEFORE THE BENCH ON THE DATE FIXED FOR HEARING ON 05 TH OCTOBER 2016. THE LEARNED COUNSEL FOR THE ASSESSEE HAS PLACED AN AFFIDAVIT DATED 25 - 05 - 2018 EXECUTED BY SAID COUNSEL SH. RAJIV KHANDELWAL ,CA ALONG WITH COPY OF HIS DIARY FOR 05 TH OCTOBER 2016 IS ALSO PLACED ON RECORD TO BUTTRESS CLAIM THAT IT WAS A BONAFIDE HUMAN ERROR WHICH SHOULD BE CONDONED BY THE BENCH AND THE APPELLATE ORDER DATED 07 TH NOVEMBER 2016 BE RECALLED . THE SA ID AFFIDAVIT DATED 25 TH MAY 2018 ALONG WITH COPY OF DIARY OF COUNSEL IS PLACED IN FILE. IT IS CLAIMED THAT THE ASSESSEES TWO APPEALS WERE FIXED BEFORE THE TRIBUNAL I.E. FOR AY 2008 - 09 (ITA NO. 2794/MUM/2012) AND ALSO FOR AY 2009 - 10(ITA NO. 5797/MUM/2013) , WHILE INADVERTENTLY THE ASSESSEE ISSUED POWER OF ATTORNEY ONLY FOR AY 2008 - 09 ON 2 1.04.2015 WHILE NO SUCH POWER OF ATTORNEY WAS ISSUED FOR ASSESSMENT YEAR 2009 - 10 , WHICH RESULTED IN ALL THE MORE CONFUSION LEADING TO MISSING OF THE DATE OF HEARING BEFORE THE BENCH ON 05 TH OCTOBER 2016 . THE MA NO. 200/MUM/2017 ARISING OUT OF ITA NO. 5797/MUM/2013 3 COPY OF SAID POWER OF ATTORNEY DATED 21.04.2015 EXECUTED BY THE ASSESSEE FOR AY 2008 - 09 IS PLACED ON RECORD. THE ASSESSEE HAS ALSO PLACED ON RECORD AFFIDAVIT DATED 13 TH JULY 2018 EXECUTED BY A SSESEE AVERRING THE AFORESAID FACT OF ISSUING ONE POWER OF ATTORNEY DATED 21.04.2015 FOR AY 2008 - 09 IN FAVOUR OF COUNSELS FOR APPEARANCE BEFORE THE BENCH WHILE HAVING BONAFIDE BELIEF THAT POWER OF ATTORNEYS FOR BOTH THE ASSESSMENT YEARS I.E. 2008 - 09 AND 2009 - 10 WERE ISSUED. THE SAID AFFIDAVIT EXECUTED BY ASSESSEE IS ALSO PLACED ON RECORD IN FILE . THUS, A PRAYER IS MADE FOR RECALL OF AN EX - PARTE ORDER DATED 07 TH NOVEMBER 2016 PASSED BY TRIBUNAL IN ITA NO. 5797/MUM/2013 AND IT IS SUBMITTED THAT IF THE ORDER IS RE CALLED , THE ASSESSEE WILL GET AN OPPORTUNITY TO PRESENT ITS CASE BEFORE THE TRIBUNAL AND AT BEST THEN THE TRIBUNAL CAN PASS AN ORDER ON MERITS IN ACCORDANCE WITH LAW. IT WAS SUBMITTED THAT NO PREJUDICE WILL BE CAUSED TO REVENUE IF AN EX - PARTE ORDER IS REC ALLED AND AT BEST THE ISSUES WILL BE DECIDED ON MERITS BY THE TRIBUNAL IN ACCORDANCE WITH LAW. 2. THE LD. DR OBJECTED TO THE RECALL OF THE APPELLATE ORDER PASSED BY TRIBUNAL DATED 07 TH NOVEMBER 2016 IN ITA NO. 5797/MUM/2013 BUT LEFT THE MATTER TO BE DECIDE D BY THE BENCH IN ACCORDANCE WITH LAW . 3. W E HAVE CONSIDER ED RIVAL CONTENTION S AND HAVE PERUSED THE MATERIAL ON RECORD . W E HAVE OBSERVED THAT IN THE INSTANT CASE FIRST EFFECTIVE HEARING TOOK PLACE BEFORE THE A BENCH ON 03.03.2016 WHEN NONE APPEARED ON BEHALF OF THE ASSESSEE . ON 3 RD MARCH 2016, THE BENCH DIRECTED REGISTRY FOR ISSUANCE OF NOTICE RPAD TO THE ASSESSEE FIXING THE DATE OF HEARING TO 05 TH OCTOBER 2016. THE REGISTRY IN COMPLIANCE OF DIRECTION OF THE BENCH ISSUED NOTICE TO THE ASSESSEE RPA D INTIMATING NEXT DATE OF HEARING TO BE 05 TH OCTOBER 2016 . THE SAID NOTICE WAS SERVED ON THE ASSESSE AND ACKNOWLEDGMENT COPY SENT BY POSTAL AUTHORITIES IS PLACED ON RECORD IN FILE. THE SECOND EFFECTIVE HEARING TOOK PLACE ON 5.10.2016 WHEN AGAIN NONE APPEA RED FOR ASSESSEE WHILE REVENUE WAS REPRESENTED BY LEARNED DR, SHRI A RAMACHANDRAN. THE BENCH HEARD LD DR ON THE DATE FIXED FOR HEARING ON 05 TH OCTOBER 2016 AND ADJUDICATED THE ISSUE IN APPEAL EX - PARTE IN THE ABSENCE OF THE ASSESSEE VIDE ORDERS DATED 07 TH NOVEMBER 2016 IN ITA NO. MA NO. 200/MUM/2017 ARISING OUT OF ITA NO. 5797/MUM/2013 4 5797/MUM/2013 WHEREIN ISSUE WAS DECIDED AGAINST THE ASSESSEE. THE ASSESSEE HAS NOW FILED THIS MA SEEKING RECALL OF THE APPELLATE ORDER DATED 07 TH NOVEMBER 2016 PASSED BY THE TRIBUNAL. THE EXPLANATIONS ARE OFFERED FOR NON - APPEARANCE ON THE DATE OF HEARING ON 05 TH OCTOBER 2016 WHICH ARE SUPPORTED BY AFFIDAVITS AND OTHER EVIDENCES WHICH ARE PLACED IN FILE. IT IS CLAIMED THAT AN EX - PARTE ORDER DATED 7 TH NOVEMBER 2016 WAS PASSED BY TRIBUNAL IN THE ABSENCE OF ASSESSEE WHICH INFRINGED P RINCIPLE OF NATURAL JUSTICE AND THE ASSESSEE DID NOT GET CHANCE TO EXPLAIN ITS POSITION BEFORE THE TRIBUNAL. IT IS THE CLAIM OF THE LD. COUNSEL FOR THE ASSESSEE THAT AUTHORISED REPRESENTATIVE WAS APPOINTED BY THE ASSESSEE TO REPRESENT ASSESSEE BEFORE THE TRIBUNAL BUT DUE TO OVERSIGHT IN MAKING ENTRIES IN HIS DIARY, THE DATE COULD NOT BE NOTED IN THE DIARY AND HENCE THE AR COULD NOT APPEAR BEFORE THE BENCH ON THE DATE FIXED FOR HEARING ON 05 TH OCTOBER 2016. THE LEARNED COUNSEL FOR THE ASSESSEE HAS PLACED A N AFFIDAVIT DATED 25 - 05 - 2018 EXECUTED BY SAID COUNSEL SH. RAJIV KHANDELWAL ALONG WITH COPY OF HIS DIARY FOR 05 TH OCTOBER 2016 WHICH IS PLACED ON RECORD TO BUTTRESS CLAIM THAT IT WAS A BONAFIDE HUMAN ERROR WHICH SHOULD BE CONDONED BY THE BENCH AND THE APPELLATE ORDER DATED 07 TH NOVEMBER 2016 BE RECALLED . THE SAID AFFIDAVIT DATED 25 TH MAY 2018 ALONG WITH COPY OF DIARY OF COUNSEL IS PLACED IN FILE. IT IS CLAIMED THAT THE ASSESSEES TWO APPEALS WERE FIXED BEFORE THE TRIBUNAL I.E. FOR AY 2008 - 09(ITA NO. 2794/MUM/2012) AND ALSO FOR AY 2009 - 10(ITA NO. 5797/MUM/2013) FOR WHICH COUNSEL WAS APPOINTED TO REPRESENT ASSESSEE BEFORE TRIBUNAL , WHILE I NADVERTENTLY THE ASSESSEE ISSUED POWER OF ATTORNEY ONLY FOR AY 2008 - 09 ON 21.04.2015 WHILE IN - FACT NO SUCH POWER OF ATTORNEY WAS ISSUED FOR ASSESSMENT YEAR 2009 - 10 ALBEIT COUNSEL WAS APPOINTED TO REPRESENT ASSESSEE , WHICH RESULTED IN ALL THE CONFUSION LEAD ING TO MISSING OF THE DATE OF HEARING BEFORE THE BENCH ON 05 TH OCTOBER 2016 FOR AY 2009 - 10 . THE COPY OF SAID POWER OF ATTORNEY DATED 21.04.2015 FOR AY 2009 - 10 IS PLACED ON RECORD. THE ASSESSEE HAS ALSO PLACED ON RECORD AFFIDAVIT DATED 13 TH JULY 2018 EXECUT ED BY A SSESSEE AVERRING THE AFORESAID FACT OF ISSUING ONE POWER OF ATTORNEY FOR AY 2008 - 09 IN FAVOUR OF COUNSELS FOR APPEARANCE BEFORE THE BENCH WHILE ASSESSEE HAVING BONAFIDE BELIEF THAT POWER OF ATTORNEYS FOR BOTH THE YEARS WERE ISSUED IN FAVOUR OF THE A SSESSEE TO MA NO. 200/MUM/2017 ARISING OUT OF ITA NO. 5797/MUM/2013 5 REPRESENT HER BEFORE THE TRIBUNAL FOR BOTH THE APPEALS I.E. AY 2008 - 09 AND 2009 - 10 . THE SAID AFFIDAVIT IS ALSO PLACED ON RECORD. WE AFTER HEARING BOTH THE PARTIES ACCEPT THE CONTENTIONS OF THE ASSESSEE AS TO BONAFIDE OF AN AFORESAID EXPLANATION IN NOT APPEARING BEFORE THE TRIBUNAL ON THE APPOINTED DAY OF HEARING ON 05 TH OCTOBER 2016 WRT APPEAL FOR AY 2009 - 10 ON ACCOUNT OF A BONAFIDE MISTAKE AND HUMAN ERROR LEADING TO NON APPEARANCE ON APPOINTED DAY OF HEARING AND RECALL OUR ORDER IN ITA NO. 5797 /MUM/2013 DATED 07 TH NOVEMBER 2016. THE REGISTRY IS DIRECTED TO PLACE APPEAL IN ITA NO. 5797/MUM/2016 BEFORE REGULAR BENCH IN DUE COURSE FOR WHICH NOTICES SHALL BE ISSUED TO BOTH THE PARTIES INTIMATING DATE OF HEARING IN ADVANCE . WE ORDER ACCORDINGLY. 4. THUS, THIS M.A. NO. 200/MUM/2017 ARISING OUT OF APPEAL IN ITA NO. NO. 5797/MUM/2013 FOR AY 2009 - 10 IS ALLOWED AS INDICATED ABOVE. ORDER PRONO UNCED IN THE OPEN COURT ON 2 6 .09 .2018 2 6 .09 .2018 S D / - S D / - ( MAHAVIR SINGH ) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: .0 9 .2018 COPY TO NISHANT VERMA SR. PRIVATE SECRETARY 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) CONCERNED, MUMBAI 4 . THE CIT - CONCERNED, MUMBAI 5 . THE DR BENCH, 6 . MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI