INDIA INFRASTRUCTURE DEVELPERS LTD, V. DCIT CIR 2(2),

MA 214/MUM/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1679 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 2008-2009
• Appeal Filed On: 17-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: HEENA DOSHI
• Keywords: Reasonable cause
• Section: 14A

Judgement Text

, ,, , , ,, , IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI , ! , ' # # # # BEFORE SHRI VIJAY PAL RAO, JM AND SHRI RAJENDRA, AM M .A. NO. 214/MUM/2013 ( $ % $ % $ % $ % &% &% &% &% / ASSESSMENT YEAR: 2008-09 ) (ARISING OUT OF ITA NO.5656/MUM/2011) M/S. INDIA INFRASTRUCTURE DEVELOPERS LIMITED, TAXATION DEPARTMENT, L& T HOUSE, N.M. MARG, BALLARD ESTATE, MUMBAI-400001 $ $ $ $ / VS. DY. COMMISSIONER OF INCOME-TAX, ROOM NO.577, 5 TH FLOOR, AAYAKAR BHAVAN, M.K.MARG, MUMBAI-400020 ' ' ./ PAN : AAACI4598Q ( '( / ASSESSEE ) .. ( )*'( / RESPONDENT ) '( + , / ASSESSEE BY : SHRI HEENA DOSHI )*'( + , / RESPONDENT BY : SH RI RAVI PRAKASH $ + -.' / DATE OF HEARING : 07.02.2014 /0& + -.' / DATE OF PRONOUNCEMENT : 07.02.2014 1 / O R D E R PER VIJAY PAL RAO, JM: THIS MISCELLANEOUS APPLICATION BY THE ASSESSEE FOR SEEKING RECALLING OF ORDER DATED 12.09.2012 OF THIS TRIBUNA L, WHEREBY THE APPEAL OF THE ASSESSEE WAS DECIDED EX-PARTE. 2. WE HAVE HEARD THE LD. AR AS WELL AS LD. DR AND C ONSIDERED THE RELEVANT MATERIAL ON RECORD. THE APPEAL OF THE ASS ESSEE WAS HEARD AND DISPOSED OF EX-PARTE BECASUE NO BODY APPEARED ON BE HALF OF THE ASSESSEE WHEN THE APPEAL WAS CALLED FOR HEARING. T HE LD. AR OF THE 2 M.A. NO214/MUM/2013 M/S INDIA INFRASTRUCTURE DEVELOPERS LTD . ASSESSEE HAS SUBMITTED THAT IT WAS FIRST DATE OF HE ARING AND DUE TO SOME UNAVOIDABLE CIRCUMSTANCES, THE COUNSEL OF THE ASSESSEE COULD NOT APPEARED BEFORE THE TRIBUNAL ON THE DATE OF HEARING . THE LD. AR HAS SUBMITTED THAT THE HEARING OF THE APPEAL WAS FIXED ON 14 TH JUNE 2012 BUT ON THE SAID DATE BENCH WAS NOT FUNCTIONING AND THE APPEAL WAS ADJOURNED TO 6 TH SEPTEMBER 2012 AS PER THE ADJOURNMENT ON NOTICE BOARD. FURTHER, IT WAS STATED THAT THE HUSBAND OF THE COUNSEL OF THE ASSESSEE MS. HEENA DOSHI ADVOCATE HAD DEVELOPED SOM E SERIOUS HEALTH PROBLEMS ON THE DAY AND NO OTHER FAMILY MEMBERS EX CEPT HER WAS AVAILABLE TO ATTEND HIM. THEREFORE, THE COUNSEL FO R THE ASSESSEE COULD NOT APPEAR ON 6 TH SEPTEMBER 2012. ON THE OTHER HAND LD. DR HAS VEHEMENTLY OBJECTED OF THE MISCELLANEOUS APPLICATIO N AND SUBMITTED THAT THE APPEAL OF THE ASSESSEE HAS BEEN DECIDED ON MERIT BY THE TRIBUNAL AND THEREFORE THERE IS NO APPARENT MISTAKE ON RECORD WHICH CAN BE RECTIFIED U/S 254(2) OF THE INCOME-TAX ACT. THE LD. DR HAS SUBMITTED THAT THE ONLY ISSUE INVOLVED IN THE APPEA L DISALLOWANCE U/S 14A BY APPLYING RULE 8D. ON REBUTTAL THE LD. AR HAS SUBMITTED THAT THE ASSESSEE HAS CLAIMED BEFORE THE AUTHORITIES BEL OW THAT NO EXPENDITURE HAS BEEN INCURRED IN RESPECT OF THE TAX FREE INCOME AND THEREFORE THE PROVISION OF SECTION 14A CANNOT BE IN VOKED WHEN THE AO HAS NOT GIVEN A FINDING THAT ANY EXPENDITURE HAS NO T INCURRED BY THE ASSESSEE FOR EARNING THE TAX FREE INCOME. THUS, TH E LD. AR HAS SUBMITTED THAT A PROPER HEARING IS REQUIRED IN THIS CASE AND THE ASSESSEE MAY BE GIVEN ONE MORE OPPORTUNITY TO PRESE NT ITS CASE. 3. HAVING CONSIDERED THE RIVAL AND RECORD TO THE FA CTS AND CIRCUMSTANCES OF THE CASE, WE NOTE THAT APPEAL OF T HE ASSESSEE WAS FIXED FOR HEARING ON 6 TH SEPTEMBER 2012 WHEN NOBODY ON BEHALF OF THE ASSESSEE APPEARED BEFORE THIS TRIBUNAL. ACCORDINGL Y THE TRIBUNAL PROPOSED TO HEAR AND DISPOSE OF THE APPEAL EX-PARTE . THOUGH, THE APPEAL HAS BEEN DISPOSED OF ON MERIT HOWEVER IF THE ASSESSEE EXPLAINED TO THE SATISFACTION OF THE TRIBUNAL THAT THERE WAS A REASONABLE CAUSE FOR 3 M.A. NO214/MUM/2013 M/S INDIA INFRASTRUCTURE DEVELOPERS LTD . NOT APPEARING BEFORE THE TRIBUNAL ON THE DAY WHEN T HE APPEAL OF THE ASSESSEE WAS HEARD EX-PARTE, THE SAME MAY BE RECALL ED AS PER RULE 24 OF THE INCOME-TAX APPELLATE TRIBUNAL RULE 1963. WE ARE SATISFIED THAT THE ASSESSEE HAD A REASONABLE CAUSE FOR NOT APPEARI NG BEFORE THIS TRIBUNAL AS EXPLAIN IN THE APPLICATION. ACCORDINGL Y, WE RECALL THE IMPUGNED ORDER DATED 12/09/2012 AND DIRECTED THE RE GISTRY TO FIXED THE APPEAL OF THE ASSESSEE FOR FRESH HEARING ON 21/04/2014 . THE NEXT DATE OF HEARING IS ANNOUNCED IN THE PRESENCE OF BOT H THE PARTIES WHO HAVE TAKEN NOTE OF THE SAME THEREFORE NO SEPARATE N OTICE OF HEARING SHALL BE ISSUED. 4. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COU RT ON 07/02/2014 . 1 + /0& ' 2$ 07/02/2014 , 0 + 3 SD/- ( RAJENDRA ) SD/- ( VIJAY PAL RAO) ' / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; 2$ /DATED : 07 /02/ 2014 F{X~{T? P.S. 1 + )- 4 &- / COPY OF THE ORDER FORWARDED TO : (1) $ %5- / THE ASSESSEE; (2) / THE REVENUE; (3) 6 ( ) / THE CIT(A); (4) 6 / THE CIT, MUMBAI CITY CONCERNED; (5) 73 )-$ , , / THE DR, ITAT, MUMBAI; (6) 38% 9 / GUARD FILE )- / TRUE COPY 1$ / BY ORDER : / ; / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI