MILIND KISHENCHAND AGARWAL, MUMBAI V. ITO 20(2)(2), MUMBAI

MA 227/MUM/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 8619 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 28-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NISHANT SAMAIYA
• Assessee Lawyers: S M BANDI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D MUMBAI BEFORE SHRI SAKTIJIT DEY (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) M.A. NO. 227 /MUM/2019 ( ITA NO. 3201/MUM/2016 ) ASSESSMENT YEAR: 2010 - 11 MILIND KISHENCHAND AGRAWAL, SUN ENTERPRISES, OMBHASKAR NIWAS, 402/4 TH FLOOR, GOREGAON EAST, MUMBAI - 400063 . VS. ITO - 20(2)(2) , MUMBAI - 400012 . PAN NO. AACPA1340F APPELLANT RESPONDENT ASSESSEE BY : M R . S.M. BANDI , AR REVENUE BY : MR. NISHANT SAMAIYA , DR DATE OF HEARING : 1 4 /06/2019 DATE OF PRONOUNCEMENT : 04/09/2019 ORDER PER N.K. PRADHAN, AM BY MEANS OF THIS MISCELLANEOUS APPLICATION (MA), THE APPLICANT SEEKS RECALL OF THE ORDER DATED 31.05.2018 PASSED BY THE ITAT J BENCH MUMBAI (ITA NO. 3201 /MUM/2016 ) FOR THE ASSESSMENT YEAR (AY) 2010 - 11. 2. THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT THE NOTICE FOR HEARING WAS SENT BY THE ITAT REGISTRY TO THE OLD ADDRESS OF THE ASSESSEE I.E. AT SUN ENTERPRISES, 605/A. DHWALGIRI BLDG., PLOT NO. 13, SHER - E - PUNJAB, SOCIETY, MAHAKALI ROAD, ANDHERI (EAST), MUMBA I 400093, MILIND KISHENCHAND MA NO. 227/MUM/2019 2 WHEREAS THE SAID OFFICE HAS BEEN SHUT DOWN AND THE ASSESSEE HAS MOVED TO ANOTHER OFFICE I.E. SUN ENTERPRISES, OMBHASKAR NIWAS, 402/4TH FLOOR, GOREGAON EAST, MUMBAI 400063. IT IS FURTHER SUBMITTED BY THE LD. COUNSEL THAT THE ASSESSEE HAD POSTED A NOTICE OUTSIDE THE OLD OFFICE THAT ANY POST/COURIER PERTAINING TO HIM BE DELIVERED AT HIS NEW OFFICE; HOWEVER, THE POSTAL AUTHORITIES DID NOT READ THE SAME AND THEREFORE, THE NOTICE SENT BY THE REGISTRY OF THE TRIBUNAL MAY HAVE BEEN RETURNED UN - SERVED. IT IS EXPLAINED BY HIM THAT THE ASSESSEE HAD NO INTENTION TO DEFY THE SAID NOTICE AS BARRING UNFORESEEN CIRCUMSTANCES, HE ENSURES COMPLIANCE OF ALL STATUTORY NOTICES RECEIVED UNDER THE RELEVANT ENACTMENTS. THUS IT IS SUBMITTED THAT THE AFORESAID ORDER DATED 3 1.05.2018 PASSED BY THE TRIBUNAL BE RECALLED, AS OTHERWISE THE APPLICANT WOULD BE PREJUDICIALLY AFFECTED AND WOULD ALSO BE SUBJECTED TO CONSIDERABLE HARDSHIP AND FINANCIAL LOSS. 3. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTATIVE (DR) SUBMITS THAT T HOUGH THE CASE WAS FIXED FOR HEARING ON 11.02.2017, 31.01.2018, 21.03.2018 AND 09.05.2018, NEITHER THE ASSESSEE NOR HIS AUTHORIZED REPRESENTATIVE APPEARED BEFORE THE TRIBUNAL ON THE ABOVE DATES. IT IS THUS ARGUED BY HIM THAT AS THE CASE HAS BEEN DECIDED ON MERITS BY THE TRIBUNAL, THE MA BE DISMISSED. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. IN FORM NO. 36 FILED BY THE ASSESSEE, AT SERIAL NO. 10 (ADDRESS TO WHICH NOTICES MAY BE SENT TO THE APPELLANT) THE ADDRESS G IVEN WAS SUN ENTERPRISES, 605/A. DHWALGIRI BLDG., PLOT NO. 13, SHER - E - PUNJAB, SOCIETY, MAHAKALI ROAD, ANDHERI (EAST), MUMBAI 400093. IN THAT MILIND KISHENCHAND MA NO. 227/MUM/2019 3 ADDRESS THE NOTICES WERE SENT ON FOUR OCCASIONS FIXING THE CASE FOR HEARING BEFORE THE TRIBUNAL ON 11.12.2017, 31.0 1.2018, 21.03.2018 AND 09.05.2018. IF THERE WAS CHANGE IN THE ADDRESS, THE SAME WAS NOT COMMUNICATED TO THE ITAT. THOUGH, CONSIDERING THE SUBMISSIONS OF THE LD. COUNSEL AND OTHER FACTUAL ASPECTS, WE ARE OF THE VIEW THAT THE ASSESSEE SHOULD BE GIVEN AN OPP ORTUNITY TO REPRESENT HIS CASE, HOWEVER, SUCH OPPORTUNITY TO THE ASSESSEE IS SUBJECT TO PAYMENT OF COST OF RS.5,000/ - . THE AFORESAID AMOUNT, AS DIRECTED, SHOULD BE DEPOSITED BY THE ASSESSEE IN THE PRIME MINISTERS RELIEF FUND WITHIN A PERIOD OF TWO WEEKS F ROM THE DATE OF RECEIPT OF THIS ORDER. SUBJECT TO PAYMENT OF THE AFORESAID AMOUNT OF RS.5,000/ - , THE APPEAL ORDER DATED 31.05.2018, IS HEREBY RECALLED AND APPEAL IS RESTORED TO ITS ORIGINAL POSITION. THE REGISTRY IS DIRECTED TO FIX THE APPEAL FOR HEARING B EFORE THE ASSIGNED BENCH IN REGULAR COURSE UPON INTIMATION TO BOTH THE PARTIES. 5. IN THE RESULT, THE MA IS ALLOWED AS PER THE TERMS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 04/09/2019. SD/ - SD/ - ( SAKTIJIT DEY ) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 04/09/2019 RAHUL SHARMA, SR. P.S. MILIND KISHENCHAND MA NO. 227/MUM/2019 4 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// (SR. PRIVATE SECRETARY) ITAT, MUMBAI