CLOWYN THOMAS FERNANDES, MUMBAI V. INCOME TAX OFFICER 20(1)(2), MUMBAI

MA 227/MUM/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 6007 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 28-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RECALLING OF
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH C, MU MBAI BEFORE SHRI B.R.BASKARAN, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER M.A NO. 227/MUM/2017 IN ITA NO.3910/MUM/2015 FOR AS SESSMENT YEAR: 2009-10 MR. COLWYAN THOMAS FERNANDES FLAT NO.2, RESHAM APARTMENTS, CHRUCH ROAD, MAROL, ANDHERI(E), MUMBAI -400018 PAN: AAKPF3700C VS. ITO, WARD- 20(1)(2), MUMBAI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SASHANK DUNDU (ADVOVATE) REVENUE BY : SHRI RAJESH KU MAR ( SR. DR) DATE OF HEARING : 15.12.2017 DATE OF PRONOUNCEMENT : 15.12.2017 ORDER UNDER SECTION 254(2) OF INCOME-TAX ACT PER PAWAN SINGH, JM: 1. THIS MISCELLANEOUS APPLICATION (MA) HAS BEEN FILED BY THE ASSESSEE FOR RECALLING OF THE ORDER DATED 25.10.2016. 2. IN THE APPLICATION THE ASSESSEE HAS PLEADED THAT AS SESSEE COULD NOT APPEAR BEFORE THE TRIBUNAL ON 25.10.2016 AS HE WAS TRAVELL ING TO BANGALORE AND RETURNED ONLY ON 07.11.2016. THE NOTICE OF HEARING OF APPEAL WAS RECEIVED BY HIS MAID MISS. MAMTA ON 23.09.2016. THE SAID MAIN F AILED TO COMMUNICATE ABOUT THE NOTICE TO THE ASSESSEE. THUS, THE ASSESSE E WAS UNABLE TO INFORM THE COUNSEL ABOUT THE DATE OF HEARING ON 25.10.2016. TH E ASSESSEE ALSO CONTENDED THAT THE ORDER WAS PASSED EX-PARTE. THE APPEAL HAS NOT BEEN DECIDED ON MERIT. THE NONE-APPEARANCE BEFORE THE TRIBUNAL WAS NEITHER INTENTIONAL NOR MALAFIDE. THE ASSESSEE PRAYED FOR RECALLING OF THE ORDER BY RECTIFYING THE 2 M.A.NO. 227/M/17- MR. COLWYAN THOMAS FERNANDES MISTAKE AND TO RECALL THE ORDER BY PASSING APPROPRI ATE ORDER AND FURTHER RE-FIX THE MATTER FOR FRESH HEARING. 3. WE HAVE HEARD LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. THE LD. AR OF THE ASSESSEE ARGUED ON THE LINE OF CONTENTS O F MISCELLANEOUS APPLICATION. IT WAS ARGUED THAT THE ASSESSEE UNDERT AKE TO THE VIGILANT BY ATTENDING THE VARIOUS FORUM CREATED UNDER INCOME-TA X ACT, INCLUDING BEFORE THE TRIBUNAL. IT WAS ARGUED THAT NON-APPEARANCE WAS NEITHER INTENTIONAL NOR DELIBERATE AND DUE TO THE REASONS EXPLAINED. THE AS SESSEE HAS FILED AFFIDAVIT IN SUPPORT OF THE APPLICATION WHEREIN IT HAS BEEN DEPO SED THAT THE ASSESSEE WAS NOT AVAILABLE IN MUMBAI FROM 12.09.2016 TO 07.11.20 16 AND THE NOTICE OF HEARING OF APPEAL WAS RECEIVED BY MAID, WHO FAILED TO COMMUNICATE TO THE ASSESSEE. ON THE OTHER HAND, THE LD. DR FOR THE REV ENUE STRONGLY OPPOSED THE APPLICATION. IT WAS ARGUED THAT ASSESSEE IS HABITUA L IN NOT ATTENDING THE VARIOUS FORUM. THE ASSESSEE IS VESTING PRECIOUS TIM E OF VARIOUS AUTHORITIES AND IS IN HABIT, NOT TO APPEAR WHEN THE CASE IS TAK EN UP FOR HEARING. THE ASSESSEE NEITHER APPEARED BEFORE THE ASSESSING OFFI CER NOR BEFORE THE LD. CIT(A) AND AGAIN BEFORE THE TRIBUNAL DESPITE SERVIC E OF NOTICE. IT WAS ARGUED THAT THE ASSESSEE DOES NOT DESERVE ANY LENIENCY AND THE APPLICATION MAY BE DISMISSED. 4. WE HAVE CONSIDERED THE SUBMISSION OF LD. AR OF THE PARTIES AND PERUSED THE RECORD. WE HAVE NOTED THAT EX-PARTE ORDER WAS PASSE D ON 25.10.2016. NOW BEFORE US, THE ASSESSEE HAS FILED AFFIDAVIT WHEREIN IT HAS BEEN CATEGORICALLY CONTENDED THAT THE DEFAULT FOR NON-APPEARANCE ON 25 .10.2016 WAS NEITHER INTENTIONAL, DELIBERATE, MALAFIDE OR MALICIOUS. THE ASSESSEE ALSO DEPOSED THAT 3 M.A.NO. 227/M/17- MR. COLWYAN THOMAS FERNANDES HE IS GENUINELY INTERESTED IN PURSUING THE APPEAL. THE LD. COUNSEL FOR ASSESSEE ALSO UNDERTAKES BEFORE US THAT ASSESSEE WOULD BE VI GILANT IN FUTURE IN PURSUING THE CASE. THE LD. DR FOR THE REVENUE HAS OBJECTED F OR RECALLING OF THE ORDER ON THE GROUND THAT ASSESSEE IS HABITUAL ABSENTEE AN D HAS NOT APPEARED BEFORE THE ASSESSING OFFICER, LD. CIT(A) AND FURTHER BEFOR E THE TRIBUNAL. CONSIDERING THE FACT AND CIRCUMSTANCES AND KEEPING IN VIEW, THE PRINCIPLE OF NATURAL JUSTICE, THE ORDER DATED 25.10.2016 IS RECA LLED, BUT SUBJECT TO PAYMENT OF COST OF RS. 5,000/-. THE ASSESSEE SHALL DEPOSIT THE COST ON OR BEFORE 15.01.2018 WITH THE REVENUE. THE ORDER DATED 25.10. 2016 IS RECALLED SUBJECT TO DEPOSIT OF COST OF RS. 5,000/-. THE HEARING OF T HE APPEAL ON MERIT IS FIXED ON 01.03.2018. ISSUANCE OF NOTICE IS DISPENSED WITH . AS THE DATE OF HEARING IS FIXED WITH THE CONSENT OF LD. REPRESENTATIVE OF THE PARTIES. 5. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY A SSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 15 TH DECEMBER, 2017 SD/- SD/- (B.R.BASKARAN) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 15/12/2017 S.K.PS COPY OF THE ORDER FORWARDED TO : / BY ORDER, (ASSTT.REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY/