ESSEL MARKETING & PROMOTIONS P.LTD, MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX 9(2)(2), MUMBAI

MA 244/MUM/2018

• Counselvise Citation: [2018] 111 COUNSELVISE.COM (IT) 1498 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 06-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJEEV KESARWANI
• Assessee Lawyers: R K BOTHRA
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D , MUMBAI BEFORE S HRI SHAMIM YAHYA (AM) AND SHRI RAM LAL NEGI (JM) M .A. N O. 244 / MUM /2018 ( ARISING OUT OF ITA NO. 3455 /MUM./201 6 ) ( ASSESSMENT YEAR : 2009 10 ) M/S ESSEL MARKETING & PROMOTION PVT. LTD., A - 208, BOOMERANG, CHANDIVALI SAKINAKA, ANDHERI (E), MUMBAI 400072 PAN: AABCE6463B VS. THE ACIT CIR 9(2)(2), AAYAKAR BHAVAN, MUMBAI - 400021 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI R.K. BOTHRA (AR) REVENUE BY : SHRI RAJEEV KESARWANI ( DR) DATE OF HEARING: 07/09 /201 8 DATE OF PRONOUNCEMENT: 26 / 1 1 /201 8 O R D E R PER RAM LAL NEGI, JM THE ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS APPLICAT ION NO 244/MUM/2018 WITH THE PRAYER TO RECAL L THE EX - PARTE ORDER DATED 21.02.2018, PASSED BY THE D BENCH OF THE TRIBUNAL IN ASSESSEES APPEAL ITA NO. 3455/MUM/2016 FOR THE AY 2009 - 10 2. BEFORE US , THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE CAPTIONED APPEAL WAS FIXED FOR HEARING ON 26.03.2 018 AS PER THE NOTICE RECEIVED FROM THE R EGISTRY. SUBSEQUENTLY , THE ASSESSEE CAME TO KNOW THAT THE CASE WAS RE - FIXED FOR HEARING ON 04.01.2018 AND THE TRIBUNAL HAS DECIDED THE APPEAL EX - PARTE. 3. SINCE, THE ASSESSEE DID NOT RECEIVE THE NOTICE REGARDING RE - FIXING OF APPEAL , THE ASSESSEE COULD NOT PRESENT ITS CASE. THE LD. COUNSEL FURTHER 2 M.A. NO . 244/MUM/2018 ASSESSMENT YEAR S : 2009 - 10 SUBMITTED THAT THE NON - APPEARANCE OF THE ASSESSEE IS NEITHER DELIBERATE NOR NEGLIGENT ACT OF THE ASSESSEE , T HEREFORE, THE EX - PARTE ORDER PASSED BY THE TRIBUNAL MAY BE REC ALLED AND THE ASSESSEE MAY BE GIVEN AN OPPORTUNITY OF BEING HEARD IN THE INTEREST OF JUSTICE. 4. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTATIVE (DR) OPPOSED THE APPLICATION ON THE GROUND THAT SINCE THE ASSESSEE DID NOT APPEAR DESPITE SERVICE OF NOT ICE, THE ASSESSEE HAS NO RIGHT TO MOVE THE PRESENT APPLICATION. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PERUSED THE MATERIAL ON RECORD. WE NOTICE THAT INITIALLY THE CASE WAS FIXED FOR HEARING ON 26.03.2018, HOWEVER, THE SAME WAS RE - FIXED AND POST ED FOR HEARING FOR 04.01.2018. ON THE SAID DATE, THE CASE WAS HEARD EX - PARTE UNDER THE IMPRESSION THAT THE ASSESSEE HAS NOT APPEARED DESPITE SERVICE OF NOTICE. SINCE, THE REGISTRY HAD SENT NOTICE MENTIONING THE DATE OF HEARING AS 26.03.2018, THE CONTENTION OF THE ASSESSEE APPEARS TO BE BONA FIDE . SINCE, THE ASSESSEE HAS EXPLAINED THE SUFFICIENT REASON FOR NON - APPEARANCE ON THE DATE OF HEARING. WE ALLOW THE APPLICATION AND RECALL THE EX - PARTE ORDER DATED 21.02.2018 IN THE INTEREST OF JUSTICE AND DIRECT THE R EGISTRY TO FIX THE CASE FOR HEARING BY THE REGULAR BENCH IN ORDINARY COURSE. IN THE RESULT, MISC. APPLICATION FILED BY THE ASSESSEE FOR A SSESSMENT YEAR 2 009 - 2010 IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH NOVEM BER , 2018 . SD/ - SD/ - ( SHAMIM YAHYA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 26 / 1 1 / 2018 ALINDRA, PS 3 M.A. NO . 244/MUM/2018 ASSESSMENT YEAR S : 2009 - 10 / 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// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI