RITESH BHANWARLAL JAIN, MUMBAI V. ACIT CENT. CIR. 42, MUMBAI

MA 268/MUM/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5470 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-02-2017
• Appeal Filed By: Assessee
• Bench Allotted: D
• Assessment Year: 2004-2005
• Appeal Filed On: 08-08-2016
• Court: TRIBUNAL
• Department Lawyers: M V RAJGURU
• Assessee Lawyers: B N RAO
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) & SHRI AMIT SHUKLA (JM) M.A. NO. 268/MUM/2016 IN I.T.A. NO. 8616 /MUM/ 2011 (ASSESSMENT YEAR 200 4 - 0 5 ) M.A. NO. 269/MUM/2016 IN I.T.A. NO. 8617/MUM/2011 (ASSESSMENT YEAR 2005 - 06) M.A. NO. 270/MUM/2016 IN I.T.A. NO. 8618/MUM/2011 (ASSESSMENT YEAR 2006 - 07) M.A. NO. 271/MUM/2016 IN I.T.A. NO. 8619/MUM/2011 (ASSESSMENT YEAR 2007 - 08) M.A. NO. 272/MUM/2016 IN I.T.A. NO. 8620/MUM/2011 (ASSESSMENT YEAR 2008 - 09) M.A. NO. 273/MU M/2016 IN I.T.A. NO. 8621/MUM/2011 (ASSESSMENT YEAR 2009 - 10) M/S. RITESH BHANWARLAL JAIN ROOM NO. 8, 3 RD FLOOR BANU MANSION NADER SHAH STREET D.N. ROAD, FORT MUMBAI - 400 001. VS. ACIT CC - 42 MUMBAI ( APPELLANT ) ( RESPONDENT ) PAN NO . AEKPJ0093A ASSESSEE BY SHRI B.N. RAO DEPARTMENT BY SHRI M.V. RAJGURU DATE OF HEARING 3 . 2 . 201 7 DATE OF PRONOUNCEMENT 3 . 2 . 201 7 O R D E R PER B.R. BASKARAN (AM) : - M/S. RITESH BHANWARLAL JAIN 2 ALL THESE MISCELLANEOUS APPLICATIONS HAVE BEEN FILED BY THE ASSESSEE SEEKING RECALL OF EX - PART E ORDER DATED 12.9.2014 PASSED BY THE TRIBUNAL IN THE HANDS OF THE ASSESSEE FOR A.Y. 2004 - 05 TO 2009 - 10. 2. LEARNED COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED THAT HE WAS AUTHORISED BY THE ASSESSEE TO APPEAR BEFORE THE TRIBUNAL. SINCE HE WAS SUFFERING F ROM ILL HEALTH, HE SENT A LETTER THROUGH HIS OFFICE STAFF SEEKING ADJOURNMENT. SINCE THE LETTER HAD BEEN SIGNED BY THE OFFICE STAFF, THE TRIBUNAL DID NOT ENTERTAIN THE SAME AND PROCEEDED TO DISPOSE OF THE APPEAL, EX - PARTE, WITHOUT PRESENCE OF THE ASSESSEE. LEARNED AR SUBMITTED THAT HE COULD NOT APPEAR BEFORE THE TRIBUNAL ON ACCOUNT OF HIS ILL HEALTH AND ACCORDINGLY PLEADED THAT THE ASSESSEE SHOULD NOT SUFFER FOR THAT REASON. ACCORDINGLY, HE PRAYED THAT THE IMPUGNED ORDER MAY BE RECALLED AND JUSTICE BE RENDE RED. 3. ON THE CONTRARY, LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE ASSESSEE DID NOT APPEAR BEFORE THE ASSESSING OFFICER AS WELL AS THE LEARNED CIT(A) AND HENCE THEY HAVE ALSO PASSED EX - PARTE ORDER. ACCORDINGLY, LEARNED DEPARTMENTAL REPRE SENTATIVE OBJECTED TO THE PETITION FILED BY THE ASSESSEE. 4. WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD. WE NOTICED THAT LEARNED AR HAS TAKEN UP THE RESPONSIBILITY FOR THE DEFAULT COMMITTED IN NOT APPEARING BEFORE THE TRIBUNAL BY STATING THAT HE WAS SUFFERING FROM ILL HEALTH . HENCE WE ARE OF THE VIEW THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE IN NOT APPEARING BEFORE THE TRIBUNAL ON THE DATE OF HEARING. HOWEVER W E NOTICE THAT THE ASSESSEE HAS NOT APPEARED BEFORE BOTH THE TAX AUTHORITIES ALSO AND FURTHER NOTICES ISSUED TO HIM BY THE REGISTRY HAVE BEEN RETURNED BACK UN - SERVED. LEARNED AR SUBMITTED THAT THE ASSESSEE HAS SINCE SHIFTED HIS RESIDENCE ON ACCOUNT OF FINANCIAL DIFFICULTIES AND HENCE HE COULD NOT RECEIVE NOTICES SERVED AT HIS OLD ADDRESS. LEARNED AR SUBMITTED THAT THE REGISTRY SENT THE NOTICE TO HIM AND HENCE HE CAME TO KNOW OF THE DATE OF HEARING AND HAS APPEARED BEFORE THE TRIBUNAL NOW. M/S. RITESH BHANWARLAL JAIN 3 5 . HAVING REGARD TO THE FACTS DISCUSSED ABOVE, WE ARE OF THE VIEW THAT THE IMPUGNED COMMON ORDER PASSED BY THE TRIBUNAL MAY BE RECALLED . WE NOTICE THAT THE ASSESSEE HAS NOT SUBMITTED HIS PRESENT ADDRESS AND FURTHER FAILED TO APPEAR BEFORE THE TAX AUTHORITIES ALSO, WE ARE OF THE VIEW THAT THE RECALL OF THE ORDER SHOULD BE SUBJECT TO A TERM. AC CORDINGLY WE IMPOSE A COST OF ` 10,000/ - UPON THE ASSESSEE, WHICH SHALL BE PAID TO THE CREDIT OF THE INCOME TAX DEPARTMENT ON OR BEFORE 15 - 02 - 2017 . BEFORE THE BENCH, THE LEARNED AR ALSO AGREED TO PAY THE COST . SUBJECT TO THE PAYMENT OF THE ABOVE COST, WE RECALL THE IMPUGNED ORDER AND DIRECT THE REGISTRY TO POST ALL THE APPEALS FOR FINAL HEARING ON 9.3.2017. WE ALSO DIRECT THE ASSESSEE NOT TO SEEK ADJOURNMENT WITHOUT REASONABLE CAUSE. THE LD A.R IS ALSO DIRECTED TO GET THE FORM NO.36 AMENDED BY MENTIONING CORRECT ADDRESS OF THE ASSESSEE. 6 . SINCE THE DATE OF HEARING IS ANNOUNCED IN THE OPEN COURT IN THE PRESENCE OF BOTH THE PARTIES, THE REGISTRY MAY DESIST FROM ISSUING FORMAL NOTICE OF HEARING , I.E, THIS ORDER SHALL ALSO BE CONSTRUED AS NOTICE OF HEARIN G . 7 . IN THE RESULT, ALL THE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE ARE ALLOWED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 3 . 2 .201 7 SD/ - SD/ - (AMIT SHUKLA ) (B.R.BASKARAN) JUDICIAL MEMBER ACCO UNTANT MEMBER MUMBAI ; DATED : 3 / 2 / 20 1 7 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) PS ITAT, MUMBAI