Appeal Details
Counselvise Citation
[2013] 124 COUNSELVISE.COM (IT) 0920 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 month(s) 28 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
20-09-2013
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
J
Next Hearing Date
20-09-2013
Assessment Year
2002-2003
Appeal Filed On
23-07-2013
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL 'J' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER MA NO. 283/MUM/2011 MA NO. 270 & 271/MUM/2013 MA NO. 344 & 345/MUM/2013 (ASSESSMENT YEARS: 2002-03 & 2004-05) (ARISING OUT OF ITA NO. 1061 & 1062/MUM/2008) M/S. EMERSON NETWORK POWER (INDIA) ACIT, CIRCLE - I PVT. LTD. (FORMERELY TATA LIEBERT LTD.) VARDAAN BLDG., LOWER GR. FLOOR PLOT C-20, ROAD NO. 19, WAGLE INDL. VS. MIDC, WAGLE INDUSTRAIL ESTATE ESTATE , THANE (W) 400604 THANE 400064 PAN - AAACT4033H APPELLANT RESPONDENT APPELLANT BY: SHRI DEEPAK P. TIKEKAR RESPONDENT BY: SHRI DIPAK RIPOTE DATE OF HEARING: 20.09.2013 DATE OF PRONOUNCEMENT: 20.09.2013 O R D E R PER D. MANMOHAN, V.P. THESE FIVE MISCELLANEOUS APPLICATIONS ARE FILED AT THE INSTANCE OF THE ASSESSEE COMPANY SEEKING RECALL OF THE EXPARTE ORDE R PASSED BY THE TRIBUNAL. IT MAY BE NOTICED THAT THE FIRST THREE AP PLICATIONS WERE FILED BY THE ASSESSEE SEEKING RECALL OF THE CONSOLIDATED ORDER D ATED 15.03.2011 PASSED BY THE ITAT J BENCH, MUMBAI WHEREAS MA 344 & 345/ MUM/2013 ARE DIRECTED AGAINST THE ORDER PASSED BY THE SAME BENCH ON 02.12.2009, WHICH IS ALSO AN EXPARTE ORDER. 2. THE FACTS NECESSARY FOR DISPOSAL OF THESE MISCELLAN EOUS APPLICATIONS ARE STATED IN BRIEF. PENALTY LEVIED BY THE AO UNDER SECTION 271(1)(C) AND SUSTAINED BY THE CIT(A) WAS CHALLENGED BEFORE THE I TAT BY FILING TWO SEPARATE APPEALS, SINCE THE PENALTY PERTAINS TO ASS ESSMENT YEARS 2002-03 AND 2004-05. THE CASES WERE POSTED FOR HEARING ON 0 2.12.2009. NONE APPEARED ON BEHALF OF THE ASSESSEE AND, THEREFORE, THE TRIBUNAL ARRIVED AT A CONCLUSION THAT THE ASSESSEE IS NOT INTERESTED IN P URSUING THE APPEALS. BY MA NO. 283+ 5/MUM/2011 M/S. EMERSON NETWORK POWER (INDIA) P. LTD 2 APPLYING THE DECISION OF THE ITAT DELHI BENCH IN TH E CASE OF CIT VS. MULTIPLAN INDIA LTD. 38 ITD 320 THE APPEALS WERE DI SMISSED AS UNADMITTED. 3. THOUGH TWO APPEALS WERE DISPOSED OF BY A COMBINED O RDER, THE ASSESSEE MOVED ONLY ONE MA, WHICH IS NUMBERED AS MA NO. 57/MUM/2010, WHEREIN IT WAS SUBMITTED THAT THE NOTICE OF HEARING FIXING THE DATE ON 02.12.2009 DID NOT REACH THE FINANCE DEPARTMENT AND HENCE THE ASSESSEE COULD NOT APPEAR ON THE DATE FIXED FOR HEARING. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE WAS EAGER TO PURSUE THE APPEALS. THE T RIBUNAL RECALLED ITS EARLIER ORDER AND DIRECTED THE REGISTRY TO POST THE APPEALS FOR FRESH HEARING. 4. THOUGH THE APPEALS WERE REFIXED FOR HEARING ON 15.0 3.2011 NONE APPEARED ON BEHALF OF THE ASSESSEE. THEREFORE, THE APPEALS WERE DISMISSED FOR WANT OF PROSECUTION, IN THE LIGHT OF THE DECISI ON OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CHEMIPOL VS. UNION OF IND IA & ORS IN CENTRAL EXCISE APPEAL NO. 52/2009 DATED 17.09.2009. 5. THE ASSESSEE AGAIN FILED ONE CONSOLIDATED APPLICATI ON SEEKING RECALL OF THE ORDER DATED 15.03.2011. SUBSEQUENT TO FILING OF THE MA THE ASSESSEE APPEARS TO HAVE NOTICED THAT SINCE TWO YEARS ARE IN VOLVED, TWO SEPARATE MISCELLANEOUS APPLICATIONS HAVE TO BE FILED THOUGH AN ORDER, DISMISSING THE APPEALS, WAS PASSED BY CONSOLIDATING BOTH THE APPEA LS. ACCORDINGLY IT FILED TWO MISCELLANEOUS APPLICATIONS ON 23.07.2013 WHEREI N THE ASSESSEE EXPLAINED THE REASONS FOR NON-APPEARANCE IN SUPPORT OF ITS CLAIM THAT THERE WAS SUFFICIENT CAUSE FOR NON-APPEARANCE AND HENCE I N EXERCISE OF THE POWERS VESTED UNDER RULE 24 OF THE INCOME-TAX (APPELLATE T RIBUNAL) RULES, 1963 THE EXPARTE ORDER PASSED BY THE TRIBUNAL DESERVES TO BE RECALLED. 6. AT THIS STAGE IT WAS BROUGHT TO THE NOTICE OF THE P ARTIES THAT IN THE LIGHT OF THE DECISION OF THE ITAT MUMBAI BENCH IN THE CAS E OF M/S. NAZNEEN SAGIR DOND (MA NO. 377 TO 382/MUM/2010 DATED 09.01.2013) THE ORDER PASSED IN MA NO. 57/MUM/2010 IS NOT IN ACCORDANCE WITH LAW AN D CONSEQUENTLY THE SECOND ORDER OF RESTORATION ITSELF MAY HAVE TO BE C ONSIDERED AS BAD IN LAW IN WHICH EVENT THE SECOND ORDER WILL HAVE NO LEGS TO S TAND AND HENCE AGAINST DISPOSAL OF THE SECOND ORDER, IF IT IS FOUND TO BE NOT SUSTAINABLE IN LAW, THE MAS FILED WOULD BECOME ACADEMIC BUT, AT THE SAME TI ME, THE ORIGINAL ORDER DISMISSING THE APPEAL FOR NON-APPEARANCE WOULD GET REVIVED. MA NO. 283+ 5/MUM/2011 M/S. EMERSON NETWORK POWER (INDIA) P. LTD 3 7. AT THIS STAGE THE LEARNED COUNSEL FOR THE ASSESSEE SOUGHT ADJOURNMENT AND FILED TWO FRESH MAS WHEREIN THE ASSESSEE COMPAN Y SOUGHT RECALL OF THE EARLIER ORDER DATED 02.12.2009 IN THE LIGHT OF THE VIEW TAKEN BY THE ITAT MUMBAI BENCHES IN THE CASE OF MRS. NAZNEEN SAGIR DO ND (SUPRA). HERE ALSO THE LEARNED COUNSEL SUBMITTED THAT THERE WAS SUFFIC IENT CAUSE FOR NON- APPEARANCE ON 02.12.2009 AND HENCE IN EXERCISE OF T HE POWERS VESTED IN US UNDER RULE 24 OF THE INCOME-TAX (APPELLATE TRIBUNAL ) RULES, 1963 THE EXPARTE ORDER PASSED BY THE TRIBUNAL NEEDS TO BE RE CALLED. 8. WE HAVE HEARD THE LEARNED D.R. IN THIS REGARD AND C AREFULLY PERUSED THE RECORD. IN THE CASE OF MRS. NAZNEEN SAGIR DOND THE ITAT MUMBAI BENCHES OBSERVED THAT FOR EACH APPEAL A SEPARATE MA HAS TO BE FILED AND SINCE THE ASSESSEE HAS FILED A CONSOLIDATED MA THE TRIBUNAL OUGHT NOT HAVE RECALLED THE EARLIER ORDER. IN OTHER WORDS, BASED O N AN INVALID APPLICATION, THE TRIBUNAL OUGHT NOT HAVE RECALLED THE ORDER DATE D 02.12.2009. CONSEQUENTLY THE SUBSEQUENT ORDER PASSED BY THE ITA T WOULD ALSO HAVE NO LEGS TO STAND IN WHICH EVENT THE FIRST ORDER DATED 02.12.2009 WOULD BECOME OPERATIVE ORDER, IN THE LIGHT OF THE DECISION OF TH E ITAT (SUPRA). IT IS NOT IN DISPUTE THAT AN EXPARTE ORDER PASSED UNDER SECTION 254(1) CAN BE RECALLED IN EXERCISE OF THE POWERS VESTED UNDER RULE 24 OF THE INCOME-TAX (APPELLATE TRIBUNAL) RULES, 1963 R.W.S. 254(2) OF THE ACT AND THERE IS NO EMBARGO UPON THE NUMBER OF APPLICATIONS THAT CAN BE FILED AGAINS T THE SAID IMPUGNED ORDER; OF COURSE IF THE CAUSE OF ACTION IS SAME, WH ICH HAS ALSO BEEN CONSIDERED EARLIER, THE TRIBUNAL MAY NOT BE EMPOWER ED TO PERMIT A PARTY TO FILE NUMBER OF APPLICATIONS. HOWEVER, IN THE INSTAN T CASE THE ASSESSEE WAS UNDER THE BONAFIDE BELIEF THAT A COMBINED MISCELLAN EOUS APPLICATION CAN BE FILED WHICH IS COMPOUNDED BY THE FACT THAT EVEN THE BENCH HAD ALSO NOT NOTICED THE DEFECT AND BY ACCEPTING THE EXPLANATION GIVEN BY THE ASSESSEE AS SUFFICIENT CAUSE IT RECALLED THE EARLIER ORDER. IN OTHER WORDS, IN SUBSTANCE THE NON-APPEARANCE ON 02.12.2009 ON THE PART OF THE ASS ESSEE IS SUPPORTED BY SUFFICIENT CAUSE. HOWEVER, IN THE LIGHT OF THE DECI SION OF THE ITAT MUMBAI BENCHES IN THE CASE OF MRS. NAZNEEN SAGIR DOND THE ASSESSEE WAS APPREHENSIVE THAT THE EARLIER ORDER PASSED IN MA NO . 57/MUM/2010 AND THE SUBSEQUENT ORDER PASSED BY THE ITAT ON 15.03.20 11 MAY BE TREATED AS MA NO. 283+ 5/MUM/2011 M/S. EMERSON NETWORK POWER (INDIA) P. LTD 4 INVALID AND HENCE THE ASSESSEE MOVED ANOTHER SET OF MAS NOW WHICH ARE NUMBERED AS MA NO. 344 & 345/MUM/2013 SEEKING RECAL L OF THE ORDER DATED 02.12.2009 BY EXPLAINING THE REASONS FOR NON- APPEARANCE ON THE DATE FIXED FOR HEARING. SINCE WE ARE IN AGREEMENT WITH T HE ASSESSEE THAT THERE IS SUFFICIENT CAUSE FOR NON-APPEARANCE ON THE DATE FIX ED FOR HEARING, WE HEREBY RECALL THE ORDER DATED 02.12.2009 AND DIRECT THE RE GISTRY TO POST THE APPEALS FOR FRESH HEARING ON 18.12.2013, IN LINE WITH THE V IEW TAKEN BY THE COORDINATE BENCH IN THE CASE OF MRS. NAZNEEN SAGIR DOND. 9. IN THE RESULT, MA NO. 283/MUM/2011 IS REJECTED ON T HE GROUND THAT IT IS AN INVALID APPLICATION, SINCE A CONSOLIDATED MA CANNOT BE FILED. SIMILARLY, MA NO. 270 & 271/MUM/2013 ARE DISMISSED ON THE GROU ND THAT IN THE EVENT OF HOLDING THAT THE ORDER DATED 15.03.2011 IS BASED UPON AN INVALID RECALL, THE SAID ORDER WOULD NOT STAND AND HENCE TH E MISCELLANEOUS APPLICATIONS FILED THEREON ARE OF ACADEMIC IMPORTAN CE. IN SUBSTANCE, MA NO. 270 & 271/MUM/2013 ARE HEREBY DISMISSED. MA NO. 344 & 345/MUM/ 2013 ARE ALLOWED AND THE REGISTRY IS DIRECTED TO PO ST THE APPEALS FOR FINAL HEARING ON 18.12.2003. SINCE THE DATE IS ANNOUNCED IN THE OPEN COURT NOTICE TO THE PARTIES IS DISPENSED WITH. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH SEPTEMBER, 2013. SD/- SD/- (SANJAY ARORA) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATED: 20 TH SEPTEMBER, 2013 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) II - THANE, MUMBAI 4. THE CIT I - THANE, MUMBAI CITY 5. THE DR, J BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.
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