THAKKER AND CO LTD, MUMBAI V. DCIT 2(3), MUMBAI

MA 233/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5650 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-05-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2010-2011
• Appeal Filed On: 28-03-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Bonafide belief; Reasonable cause

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E , MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER, AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER M.A. NO.233/MUM/2018 (ARISING OUT OF ITA NO.6104/MUM/2014) (ASSESSMENT YEAR-2010-11) M/S. THAKKER &CO. LTD. JATIA CHAMBERS, 60 VB GANDHI ROAD, KALAGHODA, MUMBAI-400023 / VS. DCIT - 2(3), ROOM NO. 552, 5TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020 ( /ASSESSEE) ( / REVENUE) P.A. NO. AAACT3200A / DATE OF HEARING : 12/04/2019 / DATE OF ORDER: 15/05/2019 / O R D E R PER G. MANJUNATHA (ACCOUNTANT MEMBER) THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICATI ON U/S 254(2) OF THE INCOME TAX ACT, 1961 AND REQUESTED TO RECALL ORDER PASSED BY THE ITAT, MUMBAI E BENCH IN ITA NO.6104MUM/2014 DATED 14/09/2017 FOR A.Y. 2010- 11 2. THE ASSESSEE HAS NARRATED FACTS AND MISTAKES STA TED TO BE APPARENT FROM THE ORDER OF THE ITAT, MUMBAI, DATED 14/09/2017 FOR ASS ESSMENT YEARS A.Y. 2010-11. / ASSESSEE BY SHRI DHARMESH SHAH / REVENUE BY SHRI SOMNATH WAJALE - DR 2 MA NO.233/MUM/2018 THE RELEVANT CONTENTS OF THE MISCELLANEOUS APPLICAT ION FILED BY THE ASSESSEE ARE REPRODUCED AS UNDER:- THE APPLICANT ABOVE NAMED BEGS TO SUBMIT AS UNDER: 1. VIDE ORDER DATED 14.09.2017, THE HON'BLE TRIBUNA L HAS DECIDED THE DEPARTMENTAL APPEAL IN ITA NO. 6104/MUM /2014 FOR A.Y. 2010-11 BY ALLOWING THE APPEAL FILED BY THE REVENUE . THE COPY OF THE SAID ORDER IS ENCLOSED HEREWITH. 2. THE SAID APPEAL WAS DISPOSED OFF BY THE HON'BLE TRIBUNAL ON THE GROUND THAT THE RESPONDENT APPLICANT HAD NOT AT TENDED THE HEARINGS INSPITE OF THE FACT THAT THE NOTICES WERE SENT IN THE PAST. 3. IT IS SUBMITTED THAT THE APPLICANT WAS SERVED WI TH THE NOTICE FIXING THE HEARING IN THE APPEAL FILED BY THE DEPAR TMENT BEFORE THE HON'BLE TRIBUNAL ON 17.05.2017. WHEN THE NOTICE WAS RECEIVED, THE SAME WAS IMMEDIATELY HANDED OVER TO THE CONSULTANTS FOR NECESSARY ACTION INCLUDING THE APPOINTMENT OF THE COUNSEL. HO WEVER, SINCE, THE APPLICANT HAD NOT RECEIVED THE COPY OF THE MEMORAND UM AND THE GROUNDS OF APPEAL FILED BY THE DEPARTMENT, THE SAID CONSULTANTS FILED LETTER DATED 09.05.2017 & 12.05.2017 BEFORE THE HON 'BLE TRIBUNAL REQUESTING FOR THE COPY OF THE MEMORANDUM AND THE G ROUNDS OF APPEAL FILED BY THE DEPARTMENT. 4. SINCE THE CONSULTANTS WERE NOT AWARE OF THE NECE SSARY PROCEDURE FOR REPRESENTATION BEFORE THE HON'BLE TRI BUNAL, THEY WERE NOT AWARE THAT THE APPLICANT HAD TO BE PRESENT ON T HE DATE OF HEARING. UNDER THESE CIRCUMSTANCES, THE APPLICANT COMPANY CO ULD NOT KNOW THAT THE HEARING WAS ADJOURNED BY THE HON'BLE TRIBU NAL TO 14.09.2017. FURTHER, DUE TO LACK OF KNOWLEDGE ABOUT THE PROCEDURE BEFORE THE HON'BLE TRIBUNAL, CONSULTANTS WERE OF TH E VIEW THAT A FRESH HEARING WILL BE GRANTED AND NOTICE OF HEARING WILL BE RECEIVED ALONG WITH COPY OF THE MEMORANDUM AND GROUNDS OF APPEAL B Y THE APPLICANT COMPANY, 5. THE CONSULTANTS THEREFORE ADVISED THE COMPANY TH AT THE COPY OF THE GROUNDS OF APPEAL AND STATEMENT OF FACTS FIL ED BY THE DEPARTMENT WOULD BE PROVIDED BY THE HON'BLE TRIBUNA L AND THEREFORE THE REPRESENTATION AS WELL AS THE APPOINTMENT OF TH E COUNSEL CAN BE DONE ONLY THEREAFTER. 6. SINCE THE APPLICANT COMPANY WAS UNDER A BONAFIDE BELIEF THAT A FRESH NOTICE WILL BE RECEIVED FROM THE HON'BLE TR IBUNAL ALONG WITH THE COPY OF THE GROUNDS OF APPEAL FILED BY THE DEPA RTMENT, THEY COULD NOT APPEAR ON 14.09.2017 AND THE MATTER WAS HEARD E X PARTE. 3 MA NO.233/MUM/2018 7. IT IS ONLY AFTER RECEIVING THE ORDER DATED 14.09 .2017, THE APPLICANT COMPANY REALIZED THAT THE DEPARTMENTAL AP PEAL WAS HEARD EX PARTE. 8. THE APPLICANT SUBMITS THAT FOR THE PURPOSE OF RE PRESENTATION BEFORE THE HON'BLE TRIBUNAL, THE APPLICANT WAS DEPE NDENT UPON IT'S CONSULTANTS TO APPOINT THE COUNSEL AND THE REPRESEN T THE MATTER. FURTHER, THE APPLICANT WAS UNDER THE BONA FIDE BELI EF THAT IT'S CONSULTANTS ARE TAKING CARE OF THE MATTER. IT IS SU BMITTED THAT SINCE THE COMPANY WAS GIVEN TO BELIEVE THAT A FRESH DATE OF HEARING WOULD BE GRANTED BY THE HON'BLE TRIBUNAL UPON PROVIDING T HE COPY OF GROUNDS OF APPEAL, THE APPLICANT COMPANY WAS AWAITI NG A FRESH NOTICE OF HEARING IN THE MATTER. 9. IT IS THEREFORE SUBMITTED THAT THE NON-ATTENDANC E BEFORE THE HON'BLE TRIBUNAL ON THE DATE OF HEARING WAS SOLELY DUE TO THE SUFFICIENT AND REASONABLE CAUSE AS EXPLAINED ABOVE. 10. THE APPLICANT REFERS TO RULE 25 OF THE APPELLAT E TRIBUNAL RULES, 1963 WHEREIN UPON DISPOSAL OF THE APPEAL OF THE DEPARTMENT, THE APPLICANT APPEARS AND SATISFIES THE HON'BLE TRI BUNAL THAT THERE WAS SUFFICIENT CAUSE FOR HIS NON-APPEARANCE WHEN TH E APPEAL WAS CALLED ON FOR HEARING, THE HONBLE TRIBUNAL SHALL M AKE AN ORDER SETTING ASIDE THE EX PARTE ORDER AND RESTORE THE AP PEAL. 11. THE APPLICANT THEREFORE PRAYS THAT THE AFORESAI D FACTS AND THE CIRCUMSTANCES NARRATED BEFORE YOUR HONOURS CONSTITU TES SUFFICIENT CAUSE FOR NON- APPEARANCE BEFORE THE HON'BLE TRIBUN AL ON THE DATE OF HEARING. THE AFORESAID FACTS NARRATED IN THE APPLIC ATION ARE ALSO CONFIRMED ON AFFIDAVIT OF THE DIRECTOR OF THE APPLI CANT COMPANY AND THE TAX CONSULTANT. 12. THE APPLICANT THEREFORE PRAYS THAT THE PRESENT ORDER OF THE HON'BLE TRIBUNAL MAY KINDLY BE RECALLED AND THE SAM E MAY BE HEARD AFRESH AFTER GIVING AN OPPORTUNITY TO THE APPLICANT . 13. FOR THIS ACT OF KINDNESS, THE APPLICANT SHALL E VER PRAY. 3. THE LD. AR FOR THE ASSESSEE, AT THE TIME OF HEAR ING, SUBMITTED THAT THE TRIBUNAL HAS PASSED EX-PARTE ORDER FOR NON-ATTENDANCE OF HEA RING BY THE ASSESSEE ON 14/09/2017. THE ASSESSEE COULD NOT ATTEND FOR HEARI NG ON 14/09/2017 DUE TO LACK OF KNOWLEDGE ABOUT PROCEEDING BEFORE THE TRIBUNAL, BEC AUSE THE ASSESSEE COULD NOT 4 MA NO.233/MUM/2018 KNOW THAT THE HEARING WAS ADJOURNED BY THE TRIBUNAL TO 14/09/2017. IN FACT, THE CONSULTANTS WHO LOOK AFTER THE TAX MATTERS WERE ADV ISED ME TO WAIT FOR FURTHER NOTICE OF HEARING, THEREFORE, THE ASSESSEE WAS ON THE BONA-FI DE BELIEF THAT FURTHER NOTICE OF HARING WILL COME AND ACCORDINGLY MISSED THE DATE OF HEARING ON 14/09/2017. THEREFORE, THERE IS REASONABLE CAUSE FOR NOT ATTEND ING THE HEARING ON 14/09/2017 AND HENCE IN THE INTEREST OF JUSTICE AND GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE, THE ORDER OF THE TRIBUNAL MAY BE RECALLED. 4. THE LD. DR, ON THE OTHER HAND, SUBMITTED THAT THE ASSESSEE HAS FAILED TO MAKE OUT A CASE OF MISTAKES APPARENT ON RECORD WHIC H COULD BE RECTIFIED U/S 254(2) OF THE ACT, AND WHAT THE ASSESSEES COUNSEL PLEADING I N ITS MISCELLANEOUS APPLICATION IS RECALLING THE ORDER FOR NON-ATTENDANCE ON THE DATE OF HEARING. THEREFORE, THERE IS NO REASON TO GIVE SECOND ATTEMPT TO THE ASSESSEE WHEN THE ASSESSEE HAS FAILED TO ADDUCE ANY PROPER REASON FOR NON-APPEARANCE ON THE DATE OF HEARING. ACCORDINGLY MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE MAY BE DISMISSED. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ISCELLANEOUS APPLICATION FILED BY THE ASSESSEE ALONG WITH ORDER OF THE TRIBU NAL DATED 14/09/2017. IT IS AN ADMITTED FACT THAT THE TRIBUNAL HAS DECIDED THE APP EAL OF THE REVENUE EX-PARTE QUA NON-APPEARANCE OF THE ASSESSEE. THE ASSESSEE HAS EX PLAINED REASONS FOR NON- APPEARANCE FOR HEARING ON 14/09/2017 ALONG WITH AFF IDAVIT AS PER WHICH THE ASSESSEE WAS ON THE BONA-FIDE BELIEF THAT WHEN THE ADJOURNME NT WAS SOUGHT IN EARLIER OCCASION, THE TRIBUNAL WILL INTIMATE NEXT DATE OF HEARING THR OUGH A PROPER NOTICE. BUT, THE DATE OF 5 MA NO.233/MUM/2018 FURTHER ADJOURNMENT HAS BEEN GIVEN WITHOUT ISSUING ANY NOTICE. ACCORDINGLY, THE ASSESSEE COULD NOT APPEAR FOR HEARING AS ON THE DAT E FIXED FOR HEARING OF THE APPEAL FURTHER, EVEN TAX CONSULTANT WHO ATTEND THE TAX MAT TERS DID NOT ATTEND HEARING ON 17/05/2017 AS THEY WERE OF THE BELIEF THAT, COPY OF MEMORANDUM OF APPEAL AND GROUNDS OF APPEAL ALONG WITH FRESH NOTICE, FIXING T HE DATE OF HEARING WOULD BE PROVIDED. UNDER THESE FACTS, THE ASSESSEE COULD NOT ATTEND FOR HEARING, THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THERE IS REASONABLE CAUSE FOR NOT APPEARING ON DATE OF HEARING AND ACCORDINGLY TO GIVE ONE MORE OPPORTUNIT Y OF HEARING TO THE ASSESSEE, WE DEEM IT APPROPRIATE TO RECALL EX-PARTE ORDER PASSED BY THE TRIBUNAL. HENCE, THE TRIBUNAL ORDER IN ITA NO.6104/MUM/2014, DATED 14/09 /2017 IS RECALLED AND THE REGISTRY IS DIRECTED TO FIX THE APPEAL FOR HEARING IN DUE COURSE WITH INTIMATION TO BOTH PARTIES. 6. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 15/05/2019. SD/- SD/- ( MAHAVIR SINGH ) (G. MANJUNATHA) ! ' /JUDICIAL MEMBER # ' / ACCOUNTANT MEMBER MUMBAI; DATED : 15/05/2019 F{X~{T? F{X~{T? F{X~{T? F{X~{T? P.S P.S P.S P.S / /. /./. /. !.. %!&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT (RESPECTIVE ASSESSEE) 2. !'# / THE RESPONDENT. 3. $# $# % ( ) / THE CIT, MUMBAI. 4. $# $# % / CIT(A)- , MUMBAI, 6 MA NO.233/MUM/2018 5. '() # ! * , $# # *, , / DR, ITAT, MUMBAI 6. )- . / GUARD FILE. / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI