SANAA SYNTEX PRIVATE LIMITED , MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX 4(3), MUMBAI

MA 276/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6112 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2010-2011
• Appeal Filed On: 31-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RECALLING OF
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH E, MU MBAI BEFORE SHRI R.C.SHARMA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER M.A NO. 276/MUM/2017 IN ITA NO.6649/MUM/2013 FOR AS SESSMENT YEAR: 2010-11 SANAA SYNTEX PVT. LTD. 135/B, SANJAY BUILDING, MITTAL INDUSTRIAL ESTATE, MAROL, ANDHERI (EAST), MUMBAI . PAN: AAACS6150L VS. ACIT 4(3), MUMBAI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI BHADRESH K. JOSHI (AR) REVENUE BY : SHRI MANISH TI WARI ( SR. DR) DATE OF HEARING : 05.01.2018 DATE OF PRONOUNCEMENT : 05.01.2018 ORDER UNDER SECTION 254(2) OF INCOME-TAX ACT PER PAWAN SINGH, JM: 1. THIS MISCELLANEOUS APPLICATION (MA) HAS BEEN FILED BY THE ASSESSEE FOR RECALLING OF THE ORDER DATED 08.11.2016. 2. IN THE APPLICATION THE ASSESSEE HAS PLEADED THAT AS SESSEE ENGAGED SHRI VIJAY KOTHARI ADVOCATE TO REPRESENT THE ASSESSEE BEFORE T HE TRIBUNAL. SHRI VIJAY KOTHARI DIED ON 05.11.2016, JUST THREE DAYS BEFORE THE DATE OF HEARING. IT WAS ARGUED THAT THE NON-APPEARANCE BEFORE THE TRIBUNAL ON 08.01.2016 WAS NEITHER INTENTIONAL NOR DELIBERATE. THE NON-APPEARANCE OF R EPRESENTATIVE/ADVOCATE OF THE ASSESSEE WAS DUE TO UNTIMELY DEATH OF MR. KOTHA RI ON 05.11.2016. IN SUPPORT OF APPLICATION FOR RECALLING OF THE ORDER D ATED 08.11.2016, THE ASSESSEE HAS FILED AFFIDAVIT OF SHRI SUNIL KATHURIA, DIRECTO R OF THE ASSESSEE-COMPANY. IN THE AFFIDAVIT, SHRI SUNIL KATHURIA DEPOSED THAT THE ASSESSEE-COMPANY APPOINTED SHRI VIJAY KOTHARI ADVOCATE, WHO DIED ON 05.11.2016 . THE LD. AR OF THE 2 M.A.NO. 276/M/17- SANAA SYNTEX PVT. LTD. ASSESSEE PRAYED FOR RECALLING OF THE ORDER AS THE S AME WAS PASSED EX-PARTE. THE LD. DR FOR THE REVENUE. THE LD. DR FOR THE REVENUE ARGUED THAT THE ASSESSEE HAS NOT FILED ANY EVIDENCE IF SHRI VIJAY KOTHARI WA S APPOINTED AS THEIR REPRESENTATIVE, TO REPRESENT THE APPEAL. 3. WE HAVE CONSIDERED THE SUBMISSION OF LD. AR OF THE PARTIES AND PERUSED THE RECORD. WE HAVE NOTED THAT EX-PARTE ORDER WAS PASSE D ON 08.11.2016 WAS PASSED. NOW BEFORE US, THE ASSESSEE-COMPANY HAS FIL ED AFFIDAVIT OF SHRI SUNIL KATHURIA, WHO HAVE CATEGORICALLY DEPOSED IN THE AFF IDAVIT THAT THE DEFAULT FOR NON-APPEARANCE ON 08.11.2016 WAS DUE TO THE REASON S BEYOND THEIR CONTROL AS THE REPRESENTATIVE/ADVOCATE OF THE ASSESSEE WAS DIE D ON 05.11.2016. THE LD. DR FOR THE REVENUE HAS OBJECTED ON THE GROUND THAT NO EVIDENCE FOR ENGAGING SHRI VIJAY KOTHARI IS FILED ON RECORD. CONSIDERING THE FACT AND CIRCUMSTANCES AND KEEPING IN VIEW, THE FACT THAT SHRI VIJAY KOTHA RI ADVOCATE, WHO WAS ENGAGED BY THE ASSESSEE DIED ON 05.11.2016. THE APP EAL OF THE ASSESSEE WAS DISMISSED EX-PARTE AS NONE APPEARED ON BEHALF OF AS SESSEE. WE FIND MERIT IN THE APPLICATION OF THE ASSESSEE. THUS, KEEPING IN V IEW, THE PRINCIPLE OF NATURAL JUSTICE, THE ORDER DATED 05.11.2016 IS RECALLED. TH E REGISTRY IS DIRECTED TO FIX THE APPEAL FOR HEARING BY REGULAR BENCH. PARTIES BE INF ORMED THROUGH PROPER NOTICE. 4. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY A SSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 5 TH JANUARY 2018 SD/- SD/- ( R.C.SHARMA ) (PA WAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 05/01/2018 S.K.PS COPY OF THE ORDER FORWARDED TO : 3 M.A.NO. 276/M/17- SANAA SYNTEX PVT. LTD. / BY ORDER, (ASSTT.REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY/