NEENA VASIYA, V. ITO 25(3)(1),

MA 28/MUM/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3510 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 06-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: N M PORWAL
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI SHAILENDRA KUMAR YADAV , JM AND SHRI SANJAY ARORA , AM . / MA NO. 28/MUM/2015 (ARISING OUT OF ITA NO. 4328/MUM/2012 ) ( / ASSESSMENT YEARS: 2008 - 09 ) NEENA VARIYA, 602, SHREE AASHIRWARD CHS, SHANKAR LANE, OPP. SHANKAR MANDIR, KANDIVALI (W), MUMBAI - 400 101 / VS. INCOME TAX OFFICER - 25(3)(1), MUMBAI ./ ./ PAN/GIR NO. AAJPU 6475 A ( APPLICANT ) : ( RESPONDENT ) APPLICANT BY : SHRI N. M. PORWAL RESPONDENT BY : SHRI AARSI PRASAD / DATE OF HEARING : 11.09.2015 / DATE OF PRONOUNCEMENT : 11 .09.2015 / O R D E R PER SANJAY ARORA, A. M.: THIS IS A MISCELLANEOUS PETITION BY THE ASSESSEE U/S. 254( 2 ) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) R/W RULE 24 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 QUA AN APPELLATE ORDER DATED 25.07.2013 PASSED BY THE TRIBUNAL U/S.254(1) OF THE ACT, DI SPOSING ITS CAPTIONED APPEAL. 2 M A NO. MA NO. 28/MUM/2015 (A.Y. 2008 - 09) NEENA VARIYA VS. ITO 2. T HE TRIBUNAL HAD DISMISSED THE ASSESSEES APPEAL IN LIMINE ON THE GROUND OF NON - PROSECUTION, DRAWING SUPPORT FROM THE DECISION S IN THE CASE OF CIT VS. B. N. BHATTACHAR GEE & OTHERS [ 1979 ] 118 ITR 46 1 (CAL) AND CIT VS. MULT IPLAN INDIA (P) LTD. [ 1991 ] 38 ITD 320 (DEL). THE ASSESSEE HAS NOW MOVED AN APPLICATION, STATING THAT THE NON - APPEARANCE BY THE LD. C OUNSEL , SHRI N. M. POR W AL, THE LD. AUTHORIZED REPRESENTATIVE (AR) BEFORE US, ON THE DATE OF HEARING , WAS ON ACCOUNT OF HIS BEING OUT OF STATION ON A PRE - SCHEDULE D VISIT. FURTHER, T HOUGH HE WAS TO RETURN BACK ON THE MORNING OF 25.07.2013, I.E., THE DATE OF HEARING, ITSELF, HE COULD, DUE TO UNFORESEEN CIRCUMSTANCES, RETURN ONLY ON 26.07.2013, RESULTING IN NON - ATTENDANCE DURING H EARING . NO ADJOURNMENT MOTION HAD BEEN MADE AS HE INTENDED TO ATTEND THE HEARING. AN A FFIDAVIT DATED 16.01.2015 BY THE SAID COUNSEL, AVERRING THE SA ME , STANDS ALSO ENCLOSED. FURTHER, RELYING ON THE DECISION IN THE CASE OF, AMONG OTHERS , CIT VS. S. CHENNIAP PA MUDALIAR [1969] 74 IT R 41 ( SC ) , IT IS SOUGHT TO BE CANVASSED THAT THE TRIBUNAL COULD NOT HAVE DISMISSED THE APPEAL IN THE MANNER DONE IN - AS - MUCH AS IT IS OBLIGED TO DECIDE THE SAME ON MERITS, I.E., EVEN GRANTING THE HEARING OF THE APPEAL EX PARTE FOR TH E DEFAULT OF THE APPEL LANT . 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD , WITH THE LD. DEPARTMENTAL REPRESENTATIVE (DR) ALSO NOT REFUTING THE CONTENTS OF THE AFFIDAVIT, FILE D ALONG WITH THE INSTANT APPLICATION. WE ARE, UNDER THE CIRCU MSTANCES, SATISFIED THAT THE DEFAULT OF NON - APPEARANCE BY THE LD. C OUNSEL ON THE DATE OF HEARING OF THE APPEAL WAS FOR GOOD AND SUFFICIENT REASONS , AND TH AT THE IN LIMINE DISMISSAL OF ITS APPEAL HA D CAUSED PREJUDICE TO T H E ASSESSEE. WE , ACCORDINGLY, IN EXE RCISE OF THE POWER U/S. 254(2), RELYING ON THE DECISION BY THE HONBLE APEX COURT IN S. CHENNIAPPA MUDALIAR ( SUPRA ) , DIRECT R EST ITUTION OF THE ASSESSEES APPEAL FOR A DECISION ON MERITS AFTER ALLOWING A REASONABLE OPPORTUNITY OF BEING HEAR D TO THE PARTIES. THE R EGISTRY IS HEREBY DIRECTED TO P O S T THE CASE FOR THE SAME IN DUE COURSE. WE DECIDE ACCORDINGLY. 3 M A NO. MA NO. 28/MUM/2015 (A.Y. 2008 - 09) NEENA VARIYA VS. ITO 4. IN THE RESULT, THE ASSESSEES M ISCELLANEOUS A PPLICATION IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON SEPTEMBER 11 , 201 5 AT THE CONCLUSION OF THE HEARING SD/ - SD/ - ( SHAILENDRA KUMAR YADAV) (S ANJAY ARORA) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 11 . 09 .201 5 . . ./ ROSHANI , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APP LIC ANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI