ACE PROPERTY DEVELOPERS, MUMBAI V. ASST CIT 20(1), MUMBAI

MA 213/MUM/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4417 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 22-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAVITA P KAUSHIK
• Keywords: Tax effect
• Section: 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A, MUMBAI BEFORE SHRI C.N. PRASAD, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER MA NO.213/M/2019 (ARISING OUT OF ITA NO.908/M/2017) ASSESSMENT YEAR: 2012-13 M/S. ACE PROPERTY DEVELOPERS, A WING, TAAL BUILDING NO.6, HDIL LAYOUT, SECTOR NO.2, CHIKHAL DONGRE ROAD, NEAR EDTA PARK, GLOBAL CITY, VIRAR (WEST), PALGHAR 401 303 PAN: AASFA3204E VS. ACIT - 20(1), ROOM NO.603, PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI 400 012 (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : SHRI MANISH SHAH, A.R. MS. KETKI MITTAL, REVENUE BY : SMT. KAVITA P. KAUSHIK, SR. D.R. DATE OF HEARING : 31.01.2020 DATE OF PRONOUNCEMENT : 18.02.2020 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: BY VIRTUE OF THIS MISCELLANEOUS APPLICATION THE AS SESSEE SEEKS THE RECALLING OF THE ORDER PASSED IN ITA NO.9 08/M/2017 A.Y. 2012-13 DATED 23.08.2018. 2. THE LD. A.R. SUBMITTED BEFORE THE BENCH THAT APP EAL WAS FILED ON 08.02.2017 AND SCHEDULED FOR HEARING ON 1 1.02.2019 AS PER THE ACKNOWLEDGEMENT ISSUED BY THE REGISTRY. THE LD. A.R. SUBMITTED THAT THE REVENUE HAS ALSO FILED APPEAL BE ARING ITA MA NO.213/M/2019 (ARISING OUT OF ITA NO.908/M/2017) M/S. ACE PROPERTY DEVELOPERS 2 NO.1432/M/2017 WHICH WAS COMMUNICATED TO THE ASSESS EE ON 28.04.2018 AND THE SAME WAS SCHEDULED FOR HEARING F OR THE FIRST TIME ON 07.02.2019 AS PER THE NOTICE ISSUED BY THE REGISTRY. THE LD. A.R. SUBMITTED THAT THE ASSESSEE MOVED APPLICAT ION FOR CONSOLIDATION OF THESE APPEALS HOWEVER, ON CHECKING ITAT OFFICIAL WEBSITE THE ASSESSEE CAME TO KNOW THAT ASSESSEES A PPEAL HAS ALREADY BEEN DISPOSED OF VIDE ORDER DATED 23.08.201 8 AS EX- PARTE ORDER WHEREAS REVENUES APPEAL WAS DISMISSED ON 03.08.2018 ON ACCOUNT OF LOW TAX EFFECT. THE LD. A .R. ALSO DREW THE ATTENTION OF THE BENCH TO PARA 3 OF THE SAID OR DER WHEREIN IT WAS STATED THAT THE NOTICE FIXING HEARING OF THE AP PEAL WAS ISSUED THROUGH RPAD, HOWEVER RETURNED UNSERVED WITH THE REMARK LEFT AND ACCORDINGLY THE BENCH PROCEEDED TO DECIDE THE APPEAL EX-PARTE. THE LD. A.R. SUBMITTED THAT THE A SSESSEE HAS CHANGED THE ADDRESS W.E.F. 01.07.2018 WHICH COULD N OT BE INTIMATED TO THE REGISTRY AND THEREFORE ASSESSEE HA S NOT RECEIVED EVEN THE ORDER OF THE TRIBUNAL DATED 23.08.2018. T HUS THE ASSESSEE WAS COMPLETELY UNAWARE OF THE DATE OF HEAR ING FIXED ON 13.06.2018. IT WAS ALSO STATED THAT THE CASE OF TH E ASSESSEE WAS HEARD ON 13.06.2018 HOWEVER IN THE CAUSE LIST RELEA SED BY THE REGISTRY FOR THE PERIOD 11.06.2018 TO 14.06.2018 , THE ASSESSEES CASE DID NOT FIGURE AND THUS THE ASSESSEE WAS ABSOL UTELY UNAWARE ABOUT THE LISTING OF THE APPEAL. THE LD. A.R. ,THEREFORE, SUBMITTED THAT THE SAID ORDER PASSED BY THE TRIBUNAL MAY PLEASE BE RECALLED AS THE APPEAL HAS NOT BEEN D ECIDED ON MERIT AND DISMISSED IN LEMINIE IN THE INTEREST OF J USTICE SO THAT THE ASSESSEE COULD BE HEARD ON MERITS. MA NO.213/M/2019 (ARISING OUT OF ITA NO.908/M/2017) M/S. ACE PROPERTY DEVELOPERS 3 3. THE LD. D.R., ON THE OTHER HAND, SUBMITTED THAT THE ASSESSEE WAS ISSUED NOTICE FIXING THE HEARING ON 13 .06.2018 AND THE FAULT LIES ON THE PART OF THE ASSESSEE AS THE C HANGE OF THE ADDRESS WAS NOT INTIMATED. ACCORDINGLY, THE LD. D. R. PRAYED THAT THE MA FILED BY THE ASSESSEE MAY KINDLY BE DIS MISSED. 4. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD, WE OBSERVE THAT THE CASE WAS DECIDED EX-PAR TE ON 13.06.2018 WHEREAS AS PER THE ACKNOWLEDGEMENT ISSUE D BY THE REGISTRY, THE CASE WAS LISTED FOR HEARING ON 11.02. 2019. THUS THE HEARING WAS PREPONED HOWEVER NOTICE PREPONING HEARI NG COULD NOT BE SERVED ON THE ASSESSEE AS THE SAME WAS RECEI VED BACK UNSERVED WITH THE REMARKS LEFT. THUS WE FIND MERIT IN THE SUBMISSIONS OF THE ASSESSEE THAT THERE IS NO FAULT OF THE ASSESSEE AS THE NOTICE PREPONING THE HEARING WAS NOT SERVED . IN THE PRESENT FACTS AND CIRCUMSTANCES, WE FEEL THAT THE E NDS OF JUSTICE WOULD BE MET IF THE EX-PARTE ORDER DATED 23.08.2018 IS RECALLED AND APPEAL IS DISPOSED OFF AFTER HEARING THE ASSESS EE ON MERITS. ACCORDINGLY, WE HEREBY RECALL THE SAID ORDER AND HE REGISTRY IS DIRECTED TO FIX THE HEARING OF THE CASE IN REGULAR COURSE. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 18.02.2020. SD/- SD/- (C.N. PRASAD) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 18.02.2020. * KISHORE, SR. P.S. MA NO.213/M/2019 (ARISING OUT OF ITA NO.908/M/2017) M/S. ACE PROPERTY DEVELOPERS 4 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY /ASSTT. REGISTRAR, ITAT, MUMBAI.