KHUSHAL R. HEFA, VASHI V. INCOME TAX OFFICER 22(3)2, NAVI MUMBAI

MA 206/MUM/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 7084 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 19-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJEEV GUBGOTRA
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER M.A NO. 206 /MUM./2018 ARISING OUT OF ITA NO. 5311 /MUM./201 7 ASSESSMENT YEAR : 20 11 12 KAUSHAL R. HEFA (PROP. M/S. ARIHANT CARGO MOVERS) PLOT NO.14/15, MALIKA COMPLEX SECTOR 19, VASHI NAVI MUMBAI 400 708 PAN AAAPH7566G . APPL IC ANT V/S INCOME TAX OFFICER WARD 2 2 (3)( 2 ), MUMBAI . RESPONDENT ASSESSEE BY : SHR I DEVENDRA JAIN REVENUE BY : SHRI RAJEEV GUBGOTRA DATE OF HEARING 03 . 0 8 .2018 DATE OF ORDER 17.08.2018 O R D E R PER SAKTIJIT DEY, J.M. B Y WAY OF THIS APPLICATION, THE ASSESSEE SEEKS RECALL OF THE ORDER DATED 2 ND NOVEMBER 2017, PASSED IN ITA NO.5311/MUM./2017. 2 . AS COULD BE SEEN FROM THE FACTS ON RECORD, THE AFORESAID APPEAL CAME UP FOR HEARING BEFORE THE TRIBUNAL ON 31 ST OCTOBER 2017. HOWEVER, SINCE NO ONE APP EARED ON BEHALF OF THE ASSESSEE WHEN THE APPEAL WAS CALLED FOR HEARING, THE TRIBUNAL, AFTER HEARING THE LEARNED 2 KAUSHAL R. HEFA DEPARTMENTAL REPRESENTATIVE AND ON THE BASIS OF MATERIAL ON RECORD, DISPOSED OFF THE APPEAL EX PARTE QUA THE ASSESSEE BY UPHOLDING THE ORDER OF THE LEARNED COMMISSIONER (APPEALS) . AFTER DISMISSAL OF H IS APPEAL, THE ASSESSEE CAME UP WITH THE PRESENT MISC. A PPLICATION STATING THEREIN THAT THE APPEAL WAS DECIDED EX PARTE WITHOUT PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HOWEVER, ON A PERUSAL OF RECORD, IT IS SEEN THAT BEFORE THE LEARNED COMMISSIONER (APPEALS) ALSO THE ASSESSEE DID NOT APPEAR, HENCE, T HE SAID APPEAL WAS DECIDED EX PARTE AGAINST THE ASSESSEE. AT THE STAGE OF TRIBUNAL ALSO, THO UGH, THE HEARING NOTICE SENT PER REGISTERED POST WITH A.D. TO THE ASSESSEE IN THE ADDRESS MENTIONED IN COL. NO. 9 OF FORM NO.36, HOWEVER, THE NOTICE COULD NOT BE SER VED ON THE ASSESSEE AND RETURNED BACK BY THE POSTAL AUTHORITIES. PERTINENT LY IN THE MISC. APPLICATION, THOUGH, THE ASSESSEE HAS FURNISHED A FRESH ADDRESS AND THE NOTICE OF HEARING WAS SENT IN THE NEW ADDRESS, HOWEVER, THE NOTICE SENT THROUGH REGISTERED POS T WITH A.D. AGAIN RETURNED BACK UNSERVED BY THE POSTAL AUTHORITY. FROM THESE FACTS, IT IS EVIDENT THAT THE ASSESSEE HAS NOT TAKEN UP ANY FOLLOW UP ACTION WITH REGARD TO APPEAL FILED BEFORE THE TRIBUNAL. WHEN THE BENCH PUT A QUERY TO THE LEARNED AUTHORISED REPRESENTATIVE TO EXPLAIN THE REASON FOR NON SERVICE OF NOTICE ON THE ASSESSEE , THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THAT THE ASSESSEE IS NOT KEEPING WELL AND IS OFTEN HOSPITALIZED. FOR THAT REASON, THE HEARING NOTICE 3 KAUSHAL R. HEFA ISSUED BY THE TRIBUNAL COUL D NOT BE RECEIVED BY THE ASSESSEE. THUS, HE SUBMITTED THAT THE EX PARTE ORDER MAY BE RECALLED AND APPEAL BE HEARD ON MERIT. 3 . LEARNED DEPARTMENTAL REPRESENTATIVE OPPOSED RECALL OF THE APPEAL ORDER. 4 . AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERUS ING THE MATERIAL ON RECORD, WE ARE OF THE VIEW THAT THE DISPOSAL OF THE APPEAL EX PARTE BY THE TRIBUNAL WAS ON ACCOUNT OF THE ASSESSEE AND THE ASSESSEE REMAINS SOLELY RESPONSIBLE FOR THAT. HOWEVER, CONSIDERING THE SUBMISSIONS OF THE LEARNED AUTHORISED REPRESENTATI VE THAT THE ASSESSEE IS NOT KEEPING WELL AND IS OFTEN HOSPITALIZED , WE TAKE A LINIENT VIEW AND IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE ARE INCLINED TO RECALL THE ORDER DATED 2 ND NOVEMBER 2017, AND RESTORE IT BACK TO ITS ORIGINAL POSITION FOR HEARING B EFORE THE BENCH IN REGULAR COURSE. HOWEVER, OUR DIRECTION TO RECALL THE ORDER DATED 2 ND NOVEMBER 2017, IS SUBJECT TO PAYMENT OF COST OF ` 1,000 BY THE ASSESSEE. THE AFORESAID AMOUNT SH OULD BE PAID BY THE ASSESSEE TO PRIME MINISTERS NATIONAL RELIEF FUND WI THIN A PERIOD OF SEVEN DAYS FROM THE DATE OF THIS ORDER AND RECEIPT OF SUCH PAYMENT MUST BE FURNISHED BEFORE THE REGISTRY. WE FURTHER DIRECT THE ASSESSEE TO FURNISH HIS CORRECT ADDRESS SO THAT NOTICE OF HEARING TO BE ISSUED BY THE REGISTRY CAN BE SERVED PR OPERLY 4 KAUSHAL R. HEFA ON THE ASSESSEE. WITH THE AFORESAID OBSERVATION, WE DISPOSE OFF THIS MISC. APPLICATION ON THE ABOVE TERMS AND CONDITIONS. 5 . IN THE RESULT, ASSESSEES MISC. APPLICATION IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 17.08. 2018 SD/ - MANOJ KUMAR AGGARWAL ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED : 17.08.2018 COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ( SR. PRIVATE SECRETARY ) ITAT, MUMBAI