SHRI VIJENDRA H. JAIN, MUMBAI V. I.T.O. - 20(3)(5), MUMBAI

MA 245/MUM/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8451 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 03-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NISHANT SOMAIYA
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI N.K. PRADHAN , ACCOUNTANT MEMBER M.A. NO. 245/MUM./2019 ( ARISING OUT OF ITA NO. 1040 / MUM . /201 8) ( ASSESSMENT YEAR : 20 09 10 ) SHRI VIJENDRA H. JAIN M/S. NAPTUNE STEEL IMPEX 100, ARDESHIR DADY STREET V.P. ROAD, MUMBAI 400 004 PAN ADTPJ8464D . APPELLANT V/S INCOME TAX OFFICER WARD 20(3)(5), MUMBAI . RESPONDENT ASSESS EE BY : SHRI DHAVAL SHAH REVENUE BY : SHRI NISHANT SOMAIYA DATE OF HEARING 14 .0 6.2019 DATE OF ORDER 03.07.2019 O R D E R PER SAKTIJIT DEY. J.M. BY THIS APPLICATION, THE ASSESSEE SEEKS RECALL OF ORDER DATED 26 TH DECEMBER 2018, PASSED BY THE TRIBUNAL IN ITA NO.1040/MUM./2018. 2 . EXPLAINING THE REASON FOR NON APPEARANCE ON THE DATE OF HEARING OF APPEAL, THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , THE DATE OF HEARING OF APPEAL FIXED ON 5 TH DECEMBER 2018, SINCE WAS NOT COMMUNICATED TO THE ASSESSEE, THE APPEAL WENT UNREPRESENTED BY THE 2 SHRI VIJENDRA H. JAIN ASSESSEE. HE SUBMITTED , SINCE THE ASSESSEE WAS UNABLE TO REMAIN PRESENT ON THE DATE OF HEARING DUE TO A REASONABLE CAUSE, THE EX PARTE ORDER PASSED DISMISSING THE APPEAL SHOULD BE RECALLED AND APPEAL MAY BE HEARD AFRESH AND DECIDED ON MERIT AFTER HE ARING THE ASSESSEE. 3 . THE LEARNED DEPARTMENTAL REPRESENTATIVE OPPOSED THE SUBMISSIONS OF THE ASSESSEE. 4 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD. ON A PERUSAL OF THE APPEAL RECORD, IT IS NOTICED THAT ASSESSEES APPEAL WAS FIXED FO R HEARING FOR THE FIRST TIME ON 1 ST OCTOBER 2018. ON THE SAID DATE OF HEARING, ON THE REQUEST OF ASSESSEE, THE APPEAL WAS ADJOURNED TO 12 TH NOVEMBER 2018. AGAIN ON 12 TH NOVEMBER 2018, THE ASSESSEE SOUGHT ADJOURNMENT AND ON THE REQUEST OF THE ASSESSEE THE A PPEAL WAS ADJOURNED TO 5 TH DECEMBER 2018. HOWEVER, ON 5 TH DECEMBER 2018, WHEN THE APPEAL WAS CALLED FOR HEARING, NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE TO REPRESENT THE APPEAL. HENCE , THE APPEAL WAS D ECIDED EX PARTE . THOUGH , THE ASSESSEE HAS SUBMITTED THAT NON APPEARANCE ON THE DATE OF HEARING OF APPEAL WAS DUE TO THE FACT THAT THE DATE OF HEARING WAS NOT INTIMATED, HOWEVER, IN OUR VIEW, THE ASSESSEE SHOULD HAVE BEEN MORE VIGILANT IN ASCERTAINING THE FATE OF ITS APPEA L. O NCE THE ASSESSEE HAS FILED THE APPLICATION SEEKING ADJOURNMENT IT IS THE DUTY OF THE ASSESSEE TO AS CERTAIN THE FRESH DATE 3 SHRI VIJENDRA H. JAIN OF HEARING FROM THE REGISTRY. THE ASSESSEE CANNOT JUST FILE THE ADJOURNMENT APPLICATION IN THE REGISTRY AND THEREAFTER KEEP QUITE. THAT BE ING THE CASE, ASSESSEE CANNOT COMPLETELY ABSOLVE HIMSELF FROM THE CONSEQUENCE S WHICH FOLLOWED DUE TO HIS NON APPEARANCE ON THE DATE OF HEARING OF APPEAL . T HOUGH , CONSIDERING THE SUBMISSIONS OF THE LEARNED AUTHORISED REPRESENTATIVE AND OTHER FACTUAL ASPECTS, WE ARE OF THE VIEW THAT THE ASSESSEE SHOULD BE GIVEN AN OPPORTUNITY TO REPRESENT ITS CASE, HOWEVER, SUCH OPPORTUNITY TO THE ASSESSEE IS SUBJECT TO PAYMENT OF COST OF ` 1,000. THE AFORESAID AMOUNT , AS DIRECTED , SHOULD BE DEPOSITED BY THE ASSESSEE IN THE PR IME MINISTERS RELIEF FUND WITHIN A PERIOD OF ONE WEEK FROM THE DATE OF RECEIPT OF THIS ORDER. SUBJECT TO PAYMENT OF THE AFORESAID AMOUNT OF ` 1,000, THE APPEAL ORDER DATED 26 TH DECEMBER 2012, IS HEREBY RECALLED AND APPEAL IS RESTORED TO ITS ORIGINAL POSIT ION. THE REGISTRY IS DIRECTED TO FIX THE APPEAL FOR HEARING BEFORE THE ASSIGNED BENCH IN REGULAR COURSE UPON INTIMATION TO BOTH THE PARTIES. 5 . IN THE RESULT, MISC. APPLICATION IS ALLOWED IN THE TERMS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN C OURT ON 03 .07.2019 SD/ - N.K. PRADHAN ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 03.07.2019 4 SHRI VIJENDRA H. JAIN COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (SR. PRIVATE SECRETARY) ITAT, MUMBAI