CHANDRIKA TAPURIAH, MUMBAI V. DCIT-CC-1(2), MUMBAI

MA 240/MUM/2022

AI Insights

Chandrika Tapuriah, an 82-year-old senior citizen and widow, filed Miscellaneous Applications seeking the recall of an ex-parte order passed by the Income Tax Appellate Tribunal, Mumbai. The ex-parte order was related to her appeals against the additions made to her income for the assessment years 2001-02, 2002-03, 2006-07, due to alleged undisclosed foreign bank credits. The applications argued that her non-appearance was due to health issues and travel restrictions during the COVID-19 pandemic, and not due to negligence or willful default. The Department opposed the recall, citing procedural adherence and previous judicial decisions. However, the Tribunal found merit in the assessee's reasons and allowed the recall of the ex-parte order for a fresh hearing.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 123320 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-02-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 24-11-2022
• Assessment Year: misc
• Appeal Filed On: 07-09-2022
• Other Referred Cases: CIT v. Hiralal Amritlal Parekh & Co. [2020] 117 taxmann.com 126 (SC), Jayantilal L. Shah v. ITAT [2015] 53 taxmann.com 229 (Bombay)
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 153A; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “C”, MUMBAI BEFORE SHRI VIKAS AWASTHY, HON'BLE JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, HON'BLE ACCOUNTANT MEMBER MA.Nos. 238, 239, 240 & 241/MUM/2022 [ARISING OUT OF ITA NO. 542, 543, 544 & 545/MUM/2019 (A.Ys: 2001-02, 2002-03, 2001-02 & 2006-07)] Chandrika Tapuriah 9, Rowdon Street, Udyanchal Building Flat No. 20, 5 th Floor, Kolkata West Bengal – 700017 PAN: ABPPT9474K v. DCIT – Central Circle – 1(2) Old CGO Building Annexe M.K. Road, Mumbai - 400020 (Appellant) (Respondent) Assessee Represented by : Shri Jitendra Singh Department Represented by : Ms. Richa Gulati Date of Hearing : 25.11.2022 Date of Pronouncement : 03.02.2023 O R D E R PER S. RIFAUR RAHMAN (AM) 1. Through these Miscellaneous Applications assessee is seeking for recall of the exparte order passed by the Tribunal in ITA.No. 542, 543, 544 & 545/Mum/2019 dated 09.03.2022. 2 MA.Nos. 238, 239, 240 & 241/MUM/2022 Chandrika Tapuriah 2. At the time of hearing, Ld. AR of the assessee submitted that assessee is a senior citizen having 82 years of age and also suffering from various age related diseases and in the Miscellaneous Application he has brought out the reasons for non-appearance and prayed for recall of these appeals. Further, Ld. AR submitted that non-appearance of the assessee on the date of hearing was not due to negligence on her part nor any willful default but was solely due to the reason beyond the control of the assessee. In the Miscellaneous Application No.238/Mum/2022, assessee submitted as under: - “1. The applicant is in receipt of the ex-parte order dated 9th March, 2022 passed by Bench 'C' of the Hon'ble Income Tax Appellate Tribunal, Mumbai (hereinafter referred as "Appellate Tribunal") in ITA No. 542/Mum/2019 for Assessment Year 2001-02 received by the applicant on 22nd April, 2022. The Applicant is moving the present Miscellaneous Application under section 254(2) of the Income Tax Act, 1961 (hereinafter referred to as "the Act") before the Hon'ble Appellate Tribunal with a prayer to recall the ex- parte order and decide the appeal on merits after considering the following facts and circumstances: - i. The Applicant before Your Honours is an Individual. The Applicant is a senior citizen having 82 years of age. The Applicant is suffering from various age-related diseases. The applicant is a widow having no legal heir and residing permanently in Kolkata. ii. The Applicant has studied only upto Class VII and she does not understand the intricacy of income tax proceedings/laws. The applicant's husband late Shri. Kashinath Taparia was earlier looking after her income tax related matters. iii. The applicant submits that the present appeal was filed before the Hon'ble Appellate Tribunal on 04.02.2019 challenging 3 MA.Nos. 238, 239, 240 & 241/MUM/2022 Chandrika Tapuriah the order dated 28.11.2018 passed by the Ld. CIT (Appeals) - 47, Mumbai upholding the action of the Ld. A.O. in making addition of Rs.32,60,60,000/- on the ground of alleged credit of 7 million USD in the foreign Bank Account while passing the assessment order dated 31.12.2008 under section 153A r.w.s. 143(3) of the Act. iv. The applicant submits that as she has studied upto Class - VII and does not understand the intricacy of income tax laws/proceedings, she was completely dependent on her late husband Shri. Kashinath Tapuria for her income tax matters. Shri. Kashinath Tapuria passed away on 15th August, 2017 and thereafter, the applicant was completely clueless about her income tax matters/proceedings. v. The applicant submits that the hearing of the appeal filed by her was fixed during the COVID-19 period by the Hon'ble Appellate Tribunal. As the applicant is 82 years old, having multiple health complication and residing permanently in Kolkata, she was unable to travel to Mumbai during COVID period to appear before the Hon'ble Appellate Tribunal or appoint someone to take care of her matters. vi. The Applicant further submits that she had requested her brother Shri Vijay Kumar Mundhra who is based in Mumbai to seek an adjournment till she appoints some authorized representative to represent her case before the Hon'ble Appellate Tribunal. vii. The Applicant submits that during the period when the hearing before the Hon'ble Appellate Tribunal is fixed, the city of Mumbai was under complete lockdown due to COVID-19, pandemic and various restrictions were imposed on the movement of the persons by the Government of Maharashtra. Thus, the brother of the Applicant was unable to make arrangements for appearance before the Hon'ble Appellate Tribunal. Hence, nobody attended before the Hon'ble Appellate Tribunal on earlier occasions. viii. The applicant submits that after the Government of Maharashtra has lifted the partial lockdown, her brother directed his office accountant Mr. Prashant Gangurd to take an adjournment of hearing. The Applicant submits that Mr. Prashant Gangurd is not conversant with the functioning of the Income Tax Appellate Tribunal and therefore, he had filed an application of adjournment 4 MA.Nos. 238, 239, 240 & 241/MUM/2022 Chandrika Tapuriah on 03.01.2022, through e-mail addressed to the Ld. CIT DR instead of Hon'ble Appellate Tribunal. The Appellate Tribunal was kind enough to adjourn the hearing to 03.03.2022, even in the absence of any adjournment application filed before it. A copy of application filed by Mr. Prashant Gangurd is attached with this application for ready reference of Your Honours. ix. The Applicant submits that Mr. Prashant Gangurd was not well during the week when the next date of hearing before the Hon'ble Appellate Tribunal was fixed. Hence, he has requested his colleague Mr. Mathew Menezes to file an application and take an adjournment. Mr. Mathew Menezes was also not conversant with the functioning of the Hon'ble Appellate Tribunal and hence, he has also addressed the application seeking an adjournment of hearing addressed to the Ld. CIT DR instead of Hon'ble Appellate Tribunal. Thus, the Hon'ble Appellate Tribunal was not aware of the adjournment application sent by Mr. Mathew Menezes. A copy of application filed by Mr. Mathew Menezes is also attached with this application for Your Honours ready reference. x. The Applicant humbly submits that she has been served with the ex-parte appellate order dated 09.03.2022 on 22.04.2022. The Applicant submits that non-attendance on the part of the Applicant was neither deliberate nor with any malicious intentions. It was purely on account of health, age and travelling issues in view of COVID-19, pandemic. 2. The Applicant humbly submits that the default of non- attendance before the Appellate Tribunal was due to reasonable cause and beyond the control of the Applicant. Therefore, the Applicant prays that Your Honour's may be pleased to exercise the discretion vested in Your Honours under proviso to Rule 24 of the Income Tax Appellate Tribunal Rules, 1963 and recall the ex-parte order dated 09.03.2022. 3. The applicant further submits that she has very good chance of success in the appeals filed before Hon'ble Appellate Tribunal and no prejudice is caused to the respondents if the matter is recalled to be heard on the merits of the case. The Applicant therefore prays that the Hon'ble ITAT may be pleased to: - 5 MA.Nos. 238, 239, 240 & 241/MUM/2022 Chandrika Tapuriah a) Set-aside the ex-parte order dated 09.03.2022 passed in the appeal numbered as ITA No.542/Mum/2019; or b) Recall the ex-parte order dated 09.03.2022 passed in ITA No. 542/Mum/2019 and the appeal may be decided afresh as per the provisions of section 254(1) of the Act; c) Such other and further relief which the Hon'ble Bench deems fit.” 3. On the other hand, Ld. DR objected for recall of the order by reference to Para No. 4 of the Tribunal order and also relied on the decision of the Hon'ble Supreme Court in the case of CIT v. Hiralal Amritlal Parekh & Co. [2020] 117 taxmann.com 126 (SC). He further relied on the decision of the Hon'ble Bombay High Court in the case of Jayantilal L. Shah v. ITAT [2015] 53 taxmann.com 229 (Bombay). 4. Considered the rival submissions and material placed on record, considering the fact that the assessee is senior citizen and also having various age related diseases and the assessee has brought on record various reasons for non-appearance on the date of hearing and we are satisfied that the reasons brought on record by the assessee are reasonable. We are of the view that these appeals should be recalled and an opportunity to the assessee to represent her case should be given to meet the principle of natural justice. Accordingly, all these appeals are recalled for fresh adjudication. The Registry is directed to 6 MA.Nos. 238, 239, 240 & 241/MUM/2022 Chandrika Tapuriah post the appeals for hearing in due course after issuing notice to both parties. 5. In the result, Miscellaneous Applications filed by the assessee are allowed. Order pronounced in the open court on 03 rd February, 2023. Sd/- Sd/- (VIKAS AWASTHY) (S. RIFAUR RAHMAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai / Dated 03/02/2023 Giridhar, Sr.PS Copy of the Order forwarded to: 1. The Appellant 2. The Respondent. 3. The CIT(A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// BY ORDER (Asstt. Registrar) ITAT, Mum