NETSCAPE SOFTWARE LTD, V. ASST CIT CEN CIR 40,

MA 222/MUM/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4564 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 01-10-2015
• Court: TRIBUNAL
• Department Lawyers: VIJAY KUMAR SONI
• Keywords: Bonafide belief; Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE S/ SHRI B.R. BASKARAN (AM) & SHAKTIJIT DEY (JM) M.A. NO. 222/MUM/2015 ARISING OUT OF I.T.A. NO. 1716 /MUM/ 20 09 (ASSESSMENT YEAR 200 5 - 0 6 ) NETSCAPE SOFTWARE LIMITED BHUPEN CHAMBERS GROUND FLOOR, 9 DALAMAL STREET, FORT MUMBAI - 400 023. VS. ACIT CC - 40 AAYAKAR BHAVAN M.K. ROAD MUMBAI - 400 020. ( APPELLANT ) ( RESPONDENT ) PAN NO . AAACN9129J ASSESSEE BY SHRI NEEL KHANDELWAL DEPARTMENT BY SHRI VIJAY KUMAR SONI DATE OF HEARING 1 . 7 . 201 6 DAT E OF PRONOUNCEMENT 1 . 7 . 201 6 O R D E R PER B.R. BASKARAN(AM) : - THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICATION SEEKING RECALL OF THE EX - PARTE ORDER DATED 5.10.2011 PASSED IN ITA NO. 1716/MUM/2009. 2. LEARNED COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED THAT THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE HAVE FILED A LETTER SEEKING ADJOURNMENT OF THE MATTER ON THE REASONING THAT THE IDENTICAL ISSUE HAS ALREADY BEEN HEARD BY ANOTHER BENCH AND ORDER WAS AWAITED. HOWEVER, SINCE LETTER OF AUTHORIT Y OF THE AUTHORISED REPRESENTATIVE WAS NOT AVAILABLE ON RECORD, THE BENCH REFUSED TO GRANT THE ADJOURNMENT AND PROCEEDED TO DISPOSE OF THE APPEAL EX - PARTE, WITHOUT PRESENCE OF THE ASSESSEE BY TAKING SUPPORT FROM THE DECISION OF HON'BLE BOMBAY HIGH COURT R ENDERED IN THE CASE OF CHEMIPOL VS. UOI AND ORS., IN CENTRAL EXCISE APPEAL NO. 52/2009. LEARNED COUNSEL SUBMITTED THAT THE TRIBUNAL HAS DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT HEARING THE ASSESSEE. 2 3. LEARNED COUNSEL SUBMITTED THAT THE ASSESSEE HAD ENTRUSTED THE JOB TO THE AUTHORISED REPRESE NTATIVE AND HAD ALSO GIVEN LETTER OF AUTHORITY WAY BACK IN 2009. HOWEVER, AUTHORISED REPRESENTATIVE HAS, INADVERTENTLY , OMITTED TO FILE THE SAME WITH THE TRIBUNAL. LEARNED COUNSEL FURNISHED COPY OF POWER OF AUTHO RITY GIVEN TO THE AUTHORISED REPRESENTATIVE ON 30.12.2009. LEARNED COUNSEL SUBMITTED THAT THE ASSESSEE SHOULD NOT BE PENALISED FOR THE FAULT OF THE AUTHORISED REPRESENTATIVE. LEARNED COUNSEL SUBMITTED THAT THE AUTHORISED REPRESENTATIVE HAD ALSO GIVEN VALI D REASON FOR SEEKING ADJOURNMENT. ACCORDINGLY, HE PRAYED THAT THE IMPUGNED ORDER PASSED BY THE TRIBUNAL MAY KINDLY BE RECALLED. 4. ON THE CONTRARY, LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE TRIBUNAL HAS PASSED REASONED ORDER AND FURTHER REA SONS GIVEN BY THE ASSESSEE CANNOT BE TAKEN AS REASONABLE CAUSE. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. WE NOTICED FROM THE ORDER PASSED BY THE TRIBUNAL THAT THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE HAS FILED AN ADJOURNMENT LET TER BEFORE THE TRIBUNAL ON THE REASONING THAT THE IDENTICAL ISSUES HAVE ALREADY BEEN HEARD AND THE ORDER WAS AWAITED. SINCE, THE LETTER OF AUTHORITY OF AUTHORISED REPRESENTATIVE WAS NOT AVAILABLE ON RECORD, THE BENCH HAS REFUSED TO GRANT ADJOURNMENT AND HA S PROCEEDED TO PASS THE ORDER EX - PARTE, WITHOUT PRESENCE OF THE ASSESSEE. NOW, AUTHORISED REPRESENTATIVE HAS FILED A LETTER DATED 20.5.2016, WHEREIN IT WAS STATED THAT THE LETTER OF AUTHORITY HAS ALREADY BEEN EXECUTED WAY BACK ON 30.12.2009 BUT THE SAME WA S OMITTED TO BE FILED WITH THE TRIBUNAL DUE TO INADVERTENCE. THE ASSESSEE HAS FILED AN AFFIDAVIT BEFORE THE TRIBUNAL, WHEREIN IT HAS STATED THAT THE ENTIRE MATTER RELATING TO THE APPEAL WAS ENTRUSTED TO THE AUTHORISED REPRESENTATIVE AND ACCORDINGLY THE ASS ESSEE WAS UNDER THE BONAFIDE BELIEF THAT THE APPEAL SHALL BE PROPERLY P ROSECUTED. ON ASSIMILATION OF THE FACT, WE ARE OF THE VIEW THAT THE ASSESSEE CANNOT BE FOUND FAULT WITH , SINCE THE OMISSION TO FILE THE POWER OF AUTHORITY WAS ON THE PART OF THE AUTHORI SED REPRESENTATIVE. 3 ACCORDINGLY, WE ARE OF THE VIEW THAT THERE WAS REASONABLE CAUSE ON THE PART OF THE ASSESSEE IN NOT APPEARING BEFORE THE TRIBUNAL ON THE APPOINTED DATE. ACCORDINGLY, BY INVOKING THE POWER GRANTED TO THE TRIBUNAL UNDER RULE 24 OF THE APPE LLATE TRIBUNAL RULES, 1963, WE RECALL THE IMPUGNED ORDER PASSED BY THE TRIBUNAL. ACCORDINGLY, WE DIRECT THE REGISTRY TO POST THIS APPEAL FOR FRESH HEARING IN NORMAL COURSE. 7. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 1 .7.2016 SD/ - SD/ - (SHAKTIJIT DEY ) (B.R.BASKARAN ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 1 / 7 / 20 1 6 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) ITAT, MUMBAI PS