ASHTAVINAYAK CONSTRUCTION, NAVI MUMBAI V. INCOME TAX OFFICER 5 (3) (2), MUMBAI

MA 230/MUM/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7714 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2010-2011
• Appeal Filed On: 27-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJEEV GUBGOTRA
• Section: 271(1)(c)

Judgement Text

G IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER MA NO. 230 /MUM/2018 ARISING OUT OF ITA NO. 5367/MUM/2016 ASSESSMENT YEAR 2010 - 11 ASHTAVINAYAKA CONSTRUCTION PLOT NO. R - 478, TTC INDUSTRIAL AREA MIDC, RABALE, NAVI MUMBAI - 400701 PAN AADFA1724G V. JO INT COMMISSIONER OF INCOME - TAX RA NGE 22(3) MUMBAI APPLICANT RESPONDENT APPELLANT BY SHRI DHARAN GANDHI RESPONDENT BY SHRI RAJEEV GUBGOTRA (DR) DATE OF HEARING : 14 - 12 - 2018 DATE OF PRONOUNCEMENT : 11 - 01 - 2019 ORDER PER RAMIT KOCHAR, ACCOUNTANT MEMBER THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICATION IN MA NO. 230 /MUM/2018 FOR ASSESSMENT YEAR ( AY) 2010 - 11 , SEEKING RECALL OF APPELLATE ORDER DATED 25.09.2017 PASSED BY INCOME - TAX APPELLATE TRIBUNAL, , G BENCH , MUMBAI (HEREINAFTER CALLED THE TRI BUNAL) IN ITA NO. 5367/MUM/2016 FOR ASSESSMENT YEAR 201 0 - 11 . 2. THE ASSESSEE AT THE OUTSET HAS SUBMITTED THAT AN EX - PARTE APPELLATE ORDER DATED 25.09.2017 WAS PASSED BY TRIBUNAL IN ITA NO. 5367/MUM/2016 FOR AY 2010 - 11 IN THE ABSENCE OF THE ASSESSEE, WHEREIN THE PENALTY LEVIED BY THE LD. ASSESSING OFFICER (HEREINAFTER CALLED THE AO) WHICH WAS LATER CONFIRMED BY LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) , MUMBAI ( HEREINAFTER CALLED THE CIT(A)) WITHIN PROVISIONS OF SECTION 271(1)(C) OF THE INCOME - TAX ACT,1961 WAS SET ASIDE AND RESTORED BY TRIBUNAL TO THE AO FOR FRESH DETERMINATION DE - NOVO . IT IS SUBMITTED THAT IT WAS AN EX - PA RTE APPELLATE MA NO. 230/MUM/2018 ARISING OUT OF ITA NO. 5367/MUM/2016 2 ORDER PASSED BY THE TRIBUNAL. IT IS CLAIMED THAT THE APPEAL WAS FIXED FOR HEARING ON 30 TH AUGUST 2017 BUT DUE TO HEAVY RAINS IN MUMBAI IN THOSE DAYS, IT WAS NOT POSSIBLE FOR ASSESSEES COUNSEL TO REACH TRIBUNAL IN TIME AND HENCE THE COUNSEL F OR THE ASSESSEE COULD NOT REACH THE TRIBUNAL FOR HEARING ON 30 TH AUGUST 2017 . IT WAS CLAIMED THAT THE MATTER WAS THEN POSTED FOR THE VERY NEXT DAY 31 ST AUGUST 2017 WHICH THE ASSESSEE WAS NOT AWARE OF. OUR ATTENTION WAS ALSO DRAWN TO ONE ANNOUNCEMENT POSTED ON 30 TH AUGUST 2017 OF THE ITAT MUMBAI BAR WEBSITE WHEREIN IT IS CLAIMED THAT THE TRIBUNAL SHALL TAKE A LIBERAL VIEW FOR GRANTING ADJOURNMENT DUE TO HEAVY RAINS IN MUMBAI 30 TH AUGUST 2017 . THE LEARNED DR DID NOT RAISE MUCH OBJECTION TO RECALL OF THE TRIBU NAL ORDER DATED 25.09.2017 IN VIEW OF EXTRA ORDINARY CIRCUMSTANCES OF HEAVY RAINS PREVAILING IN MUMBAI. 3. WE HAVE HEARD RIVAL PARTIES AND ALSO GONE THROUGH OUR OLD RECORDS . WE HAVE OBSERVED THAT THE ASSESSEES APPEAL IN ITA NO. 5367/MUM/2016 FOR ASSESSMENT YEAR 2010 - 11 WAS FIRST FIXED FOR HEARING ON 9 TH AUGUST 2017 . THE ASSESSEE SOUGHT ADJOURNMENT ON 09 - 08 - 2017 WHICH WAS GRANTED BY THE BENCH AND THE MATTER WAS THEN FIXED BY BENCH FOR HEARING ON 30 TH AUGUST 2017. ON 30 TH AUGUST 2017, THE MATTERS COULD NOT BE HEARD DUE TO HEAVY RAINS AND THUS WAS TAKEN UP BY THE BENCH ON 31 ST AUGUST 2017. WHEN THE MATTER CAME UP FOR HEARING BEFORE THE BENCH ON 31 ST AUGUST 2017, NONE APPEARED FOR ASSESSEE BEFORE TH E BENCH . IT IS TRUE THAT THE PERIOD OF 29 TH AUGUST 2017 ONWARDS WAS THE PERIOD OF HEAVY RAINS IN MUMBAI AND IT IS NOT UNCOMMON THAT LIFE IN MUMBAI GETS PARALYSED DUE TO THESE HEAVY RAINS, WHEREIN INFRASTRUCTURE OF MUMBAI GETS CLOGGED CAUSING GREAT HARDSHIP AND INCONVENIENCE TO PEOPLE TO COMMUTE. I T IS ALSO EQUALLY TRUE THAT THIS APPEAL WAS DECIDED EX - PARTE BY TRIBUNAL IN THE ABSENCE OF ASSESSEE. NOW, THE ASSESSEE HAS FILED AN MISCELLANEOUS APPLICATION(MA) SEEKING RECALL OF TRIBUNAL ORDER DATED 25.09.2017 , WHICH WE FIND TO BE FAIR TO ALLOW KEEPING IN VIEW EXTRAORDINARY SITUATION PREVAILING AT THE TIME OF HEARING OF APPEAL BEFORE THE BENCH ON 30 TH / 31 ST AUGUST 2017 DUE TO HEAVY RAINS IN MUMBAI CAUSING DISRUPTION OF NORMAL LIFE AND IN ALL FAIRNESS TO BOTH THE R IVAL PARTIES AND IN ORDER TO DO JUSTICE, WE ORDER RECALL OF THE TRIBUNALS APPELLATE ORDER MA NO. 230/MUM/2018 ARISING OUT OF ITA NO. 5367/MUM/2016 3 DATED 25.09.2017 IN ITA NO. 5367/MUM/2016 . THE R EGISTRY SHALL PLACE THE AFORESAID APPEAL IN ITA NO. 5367/MUM/2016 FOR AY 2010 - 11 BEFORE REGULAR BENCH FOR REGULAR HE ARING IN DUE COURSE OF TIME FOR WHICH FRESH NOTICES OF HEARING SHALL BE ISSUED TO BOTH THE RIVAL PARTIES. THE ASSESSEES MA NO. 230/MUM/2018 ARISING OUT OF ITA NO. 5367/MUM/2016 FOR AY 2010 - 11 IS ALLOWED AS INDICATED ABOVE. WE ORDER ACCORDINGLY. 3 . THUS, THIS M.A. NO. 2 3 0 /MUM/201 8 ARISI NG OUT OF APPEAL IN ITA NO. 5367 /MUM/20 1 6 FOR AY 2010 - 11 FILED BY THE ASSESSEE IS ALLOWED AS INDICATED ABOVE. ORDER PRON OUNCED IN THE OPEN COURT ON 1 1 .01.2019 1 1 .01.2019 S D / - S D / - ( SAKTIJIT DEY ) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 1 1 . 0 1 .201 9 COPY TO NISHANT VERMA SR. PRIVATE SECRETARY 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) CONCERNED, MUMBAI 4 . THE CIT - CONCERNED, MUMBAI 5 . THE DR BENCH, 6 . MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI