MADANLAL M JAIN, MUMBAI V. ITO WD 14(2)(2), MUMBAI

MA 25/MUM/2019

• Counselvise Citation: [2020] 107 COUNSELVISE.COM (IT) 9341 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-08-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 14-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUN KUMAR SINGH
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE SHRI C.N. PRASAD, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER MA NO.25/M/2019 (ITA NO.1651/M/2019) ASSESSMENT YEAR: 2009-10 SHRI MADANLAL M. JAIN, INDRANI SILK, GR. FLOOR, 182/186, KALBADEVI, MAHARASHTRA- 40002 PAN: ABOPJ3988K VS. ITO WD 14(2)(2), EARNEST HOUSE, 3 RD FLOOR, NARIMAN POINT, MUMBAI - 400020 (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : SHRI AKASH KUMAR, A.R. REVENUE BY : SHRI CHAUDHARY ARUN KUMAR SINGH, D. R. DATE OF HEARING : 05.04.2019 DATE OF PRONOUNCEMENT : 06.08.2020 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: BY VIRTUE OF THIS MISCELLANEOUS PETITION, THE ASSE SSEE SEEKS THE RECALLING OF THE ORDER PASSED BY TRIBUNAL IN IT A NO.1651/M/2014 A.Y. 2009-10 VIDE ORDER DATED 12.09. 2018. 2. THE LD. A.R., AT THE OUTSET, SUBMITTED THAT THE ABOVE APPEAL CAME UP FOR HEARING BEFORE THE BENCH ON 16.0 7.2018 AND HAS BEEN DISPOSED OF VIDE ORDER DATED 12.09.2018 WH ICH IS AN EX-PARTE ORDER. THE LD. A.R. SUBMITTED THAT ON THE DATE APPOINTED FOR HEARING I.E. 16.07.2018 WHICH WAS ADJ OURNED FROM 10.05.2018 AS IT COULD NOT BE ATTENDED AS THE COUNS EL OF THE ASSESSEE FAILED TO NOTE THE DATE IN HIS DIARY AND A CCORDINGLY THE MA NO.25/M/2019 (ITA NO.1651/M/2019) SHRI MADANLAL M. JAIN 2 APPEAL WAS DISMISSED FOR NON ATTENDANCE. THEREFORE , THE ASSESSEE WAS DEPRIVED OF ITS LEGITIMATE AND LAWFUL LEGAL RIGHTS TO REPRESENT THE CASE ON MERITS AS THE CASE WAS DECIDE D EX-PARTE ON 23.04.2019. THE LD. A.R., THEREFORE, PRAYED THAT T HE ASSESSEE MAY KINDLY BE GRANTED ONE MORE OPPORTUNITY TO REPRE SENT ITS CASE BY RECALLING THE ORDER DATED 25.04.2019 BY REL YING ON THE TWO DECISIONS I) DATED 20.10.2016 OF HONBLE HIMAC HAL PRADESH HIGH COURT IN THE CASE OF DHARAM DUTT AND HARI SARA N AND ORS. CMPMO NO.4156 OF 2013 AND II) HONBLE SUPREME COURT IN THE CASE OF STATE OF NAGALAND VS. LIPOK AO & ORS. MANU/SC/0250/(2005) 3 SC CASES 752. THE LD. A.R., THEREFORE, PRAYED FOR THE KIND INDULGENCE OF THE BE NCH IN RECALLING THE EX-PARTE ORDER AS THE SAME IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE AS THE NON ATTENDANCE WAS OWING TO INADVERTENT ERROR OF THE AUTHORISED REPRESENTATIVE. 3. THE LD. D.R. STRONGLY OPPOSED THE ARGUMENTS OF THE LD. A.R. BY SUBMITTING THAT A CLEAR DATE WAS GIVEN TO T HE ASSESSEE ON 16.07.2018 ON WHICH THE LD. A.R. OF THE ASSESSEE DI D NOT APPEAR AND THE ORDER WAS PASSED EX-PARTE IS NOT SUFFERING FROM ANY DEFECT OR DEFICIENCY. THE LD. D.R. SUBMITTED THAT SINCE THERE IS NO APPARENT MISTAKE IN THE SAID ORDER, THEREFORE TH E MA OF THE ASSESSEE MAY KINDLY BE DISMISSED. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. AFTER PERUSING THE RECORDS BEFORE US, WE NOTE THAT THE REPRESENTATIVE OF THE A SSESSEE COULD NOT ATTEND ON THE DATE OF HEARING ON 16.07.2018 DUE TO HIS NON MA NO.25/M/2019 (ITA NO.1651/M/2019) SHRI MADANLAL M. JAIN 3 RECORDING OF DATE OF HEARING IN HIS CASE DIARY AND THUS THE CASE WENT UNHEARD RESULTING INTO EX-PARTE ORDER. IN O UR CONSIDERED VIEW, THE ASSESSEE CAN NOT BE PENALIZED FOR THE INA DVERTENT MISTAKE ON THE PART OF THE COUNSEL WHO DID NOT APPE AR TO ATTEND THE HEARING. THE CASE OF THE ASSESSEE IS SUPPORTED BY THE DECISION OF HONBLE SUPREME COURT DECISION IN THE CASE OF STATE OF NAGALAND VS. LIPOK AO & ORS.(SUPRA) WHEREIN THE HONBLE SUPREME COURT HAS HELD THAT WHERE SUBSTANTIAL JUSTI CE AND TECHNICAL APPROACH ARE PITTED AGAINST EACH OTHER TH EN THE FORMER HAS TO BE PREFERRED. THE HONBLE HIMACHAL PRADESH HIGH COURT IN ITA NO.4156/13 DATED 20.10.2016 HAS HELD THAT IT IS A SETTLED LAW THAT TECHNICALITIES OF LAW MAY NOT PREVENT THE COURT FROM DOING SUBSTANTIAL JUSTICE. THE COURT HELD THAT JUD ICIARY IS NOT REPRESENTED ON ACCOUNT OF ITS POWER TO LEGALISE INJ USTICE ON TECHNICAL GROUND BUT BECAUSE IT IS CAPABLE OF REMOV ING INJUSTICE AND IS EXPECTED TO DO SO BY MAKING JUSTICE ORIENTED APPROACH FROM THIS PERSPECTIVE. IN VIEW OF THE ABOVE FACTS, WE ARE INCLINED TO RECALL OUR ORDER DATED 12.09.2018 WITH THE DIREC TION TO THE REGISTRY TO LIST THE SAME BEFORE THE REGULAR BENCH FOR HEARING. IN VIEW OF THE ABOVE FACTS AND RATIO LAID DOWN BY THE HONBLE APEX COURT WE ARE OF THE CONSIDERED VIEW TH AT ASSESSEE SHOULD NOT BE PENALIZED FOR THE TECHNICAL LAPSE ON THE PART OF THE COUNSEL OF THE ASSESSEE. ACCORDINGLY, WE ARE I NCLINED TO RECALL OUR ORDER DATED 12.09.2018 WITH THE DIRECTIO N TO POST THE SAME FOR HEARING BEFORE THE REGULAR BENCH. MA NO.25/M/2019 (ITA NO.1651/M/2019) SHRI MADANLAL M. JAIN 4 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 06.08.2020. SD/- SD/- (C.N. PRASAD) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 06.08.2020. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY /ASSTT. REGISTRAR, ITAT, MUMBAI.