SOLO HARDWARE P. LTD, MUMBAI V. ASST CIT CIR 5(3)(2), MUMBAI

MA 281/MUM/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9275 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2010-2011
• Appeal Filed On: 22-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS JATHIL AKSHMI NAYAK
• Keywords: Principle of natural justice
• Section: 143(3); 147

Judgement Text

G IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER MA NO. 281 & 282 /MUM/2019 ARISING OUT OF ITA NO. 1485 & 1486/MUM/2017 ASSESSMENT YEAR 2010 - 11 & 2011 - 12 SOLO HARDWARE PRIVATE LIMITED SHOP NO. 03, SHASTRI NAGAR, 90FT ROAD , NEAR AMBEDKAR CHOWK, OPP. PA NT NAGAR POLICE STATION, GHATKOPAR (E), MUMBAI - 400075 PAN AAJCS0760R V. ACIT CIR 5(3)(2) AAYAKAR BHAWAN M K ROAD MUMBAI - 400020 APPLICANT RESPONDENT APPELLANT BY SHRI NIMESH CHOTHANI RESPONDENT BY MRS. JATHIL AKSHMI NAYAK (DR) DATE OF HEARING : 21 - 06 - 2019 DATE OF PRONOUNCEMENT : 05 - 07 - 2019 ORDER PER RAMIT KOCHAR, ACCOUNTANT MEMBER THE ASSESSEE HAS FILED THESE TWO MISCELLANEOUS APPLICATION S(MAS) VIDE MA NO. 281 & 282 /MUM/2019 ARISING OUT OF APPEAL S IN ITA NO. 1485 & 1486/MUM/2017 FOR ASSESSMENT YEAR(S) 2010 - 11 AND 2011 - 12 RESPECTIVELY, SEEKING RECALL OF COMMON ORDER DATED 24.10.2018 IN ITA NO. 1485 & 1486/MUM/2017 PA SSED BY TRIBUNAL FOR AY 2010 - 11 AND 2011 - 12 RESPECTIVELY . MA NO. 281 & 282/MUM/2019 ARISING OUT OF ITA NO. 1485 & 1486/MUM/2017 2 | P A G E 2. A T THE OUTSET , LD. COUNSEL FOR THE ASSE SSEE DREW OUR ATTENTION TO APPELLATE ORDER DATED 24.10.2018 PASSED BY TRIBUNAL IN ITA NO. 1485 & 1486/MUM/2017 FOR AY 2010 - 11 AND 2011 - 12, WHICH WAS AN EX - PARTE ORDER PASSED IN THE ABSENCE OF ASSESSEE , WHILE R EVENUE WAS REPRESENTED BY SHRI. CHAUDHARY ARUN KUMAR SINGH ,DR WHEN THESE TWO APPEAL S WERE HEARD EX - PARTE IN THE ABSENCE OF ASSESSEE BEFORE THE B ENCH ON 17.10.2018. THE LEARNED COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO TWO SEPARATE AFFIDAVIT (S) BOTH DATED 22.04.2019 FILED BY THE ASSESSEE (PLACED IN MA FILE S ) , WHEREIN IT IS AVERRED AND STA TED BY SHRI. NIKHIL L. CHHEDA, D IRECTOR OF THE ASSESSEE COMPANY , THAT WHEN BOTH THE SE APPE AL S WAS LAST HEARD ON 17.09.2018, T HE ASSESSEE HAD FILED WRITTEN ADJOURNMENT LETTER DATED 1 4.09.2018 FILED WITH REGIST RY ON 14.09.2018, SEEKING ADJOURNMENT ON THE DATE OF HEARING ON 17.09.2018, WHICH ADJOURNMENT WAS GRANTED BY TRIBUNAL FIXING NEXT DATE OF HEARING TO 17.10.2018 . THE ASSESSEE SUBMITTED THAT THIS LETTER DATED 14.09.2018 SEEKING ADJOURNMENT ON THE DATE OF H EARING ON 17.09.2018, FROM ITS C OUNSEL M/S BANS H I JAIN & ASSOCIATES , CHARTE RE D ACCOUNTANTS WAS FILED IN THE R EGISTRY ON 1 4.09.2018 AND THE COUNSEL FOR THE ASSE SSEE DID NOT APPEAR BEFORE THE B ENCH WHEN THE APPEAL WAS CALLED FOR HEARING ON 17.09.2018 BUT SOME ONE FROM THERE OFFICE APPEARED , AS LETTER OF ADJOURNMENT DATED 14.09.2018 WAS ALREADY FILED WITH REGISTRY ON 14.09.2018 . IT IS STATED AND AVERRED THAT THE ASSESSEE WAS NOT AWARE OF THE DATE OF HEARING OF 17.10.2018 FIXED BY THE BENCH AND THE A SSESSEE WAS UNDER BONAFIDE AND GENUINE BELIEF THAT IT WILL RECEIVE FRESH NOTICE S OF HEARING FROM ITAT INTIMATING IT OF NEXT DATE OF HEARING FIXED FOR ITS APPEALS, BUT NO FRESH NOTICE S WERE RECEIVED FROM ITAT AND THE APPEALS OF THE ASSESSEE WERE HEARD EX - PA RTE ON NEXT DATE OF HEARING FIXED VIZ. 17.10.2018 IN THE ABSENCE OF ASSESSEE WHEREIN BOTH THE APPEALS OF THE ASSESSEE STOOD DISMISSED . IT WAS SUBMITTED THAT PRINCIPLES OF NATURAL JUSTICE ARE BREACHED AND ASSESSEE WAS PREJUDICED OWING TO EXPARTE DISMISSAL OF ITS APPEALS. IT IS PRAYED THAT THE COMMON ORDER DATED 24.10.2018 PASSED BY ITAT FOR AY 2010 - 11 AND 2011 - 12 RESPECTIVELY EX - PARTE BE RECALLED. MA NO. 281 & 282/MUM/2019 ARISING OUT OF ITA NO. 1485 & 1486/MUM/2017 3 | P A G E 2.2 THE LD. DR ON THE OTHER HAND SUBMITTED THAT REQUISITE OPPORTUNITY WAS GIVEN TO ASSESSEE BY TRIBUNAL AND FAIRLY LEFT THE MATTER TO BE DECIDED BY THE BENCH. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD . W E HAVE OBSERVED THAT THE TRIBUNAL VIDE COMMON ORDER DATED 24.10.2018 IN ITA NO. 1485 & 1486/MUM/2017 FOR AY 2010 - 11 & 2011 - 12 RESPECTIVELY DISMISSED ASSESSEE S APPEALS EX - PARTE IN THE ABSENCE OF THE ASSESSEE/AUTHORISED REPRESENTATIVE OF THE ASSESSEE ON 17.10.2018, WHEN THE APPEAL S WERE CALLED FOR HEARING AS NONE APPEARED ON BEHALF OF THE ASSESSEE . WE HAVE OBSERVED FROM ORDER SH EET ENTRIES IN APPEAL FILES THAT THESE APPEALS IN ITA NO. 1485 & 1486/MUM/2017 WERE FILED BY ASSESSEE IN THE YEAR 2017 AND THE FIRST EFFECTIVE HEARING IN THESE TW O APPEALS WERE HELD BEFORE THE B ENCH ON 17.09.2018 , WHEN THE ASSESSEE HAD MOVED AN APPLICATIO N OF ADJOURNMENT DATED 14.09.2018 THROUGH ITS CHARTE RE D ACCOUNTANT NAMELY SHRI. BANS H I JAIN & ASS OCIATES WHICH WAS FILED WITH REGISTRY ON 1 4.09.2018 . WHEN THE MATTER CAME UP FOR HEARING BEFORE THE B ENCH ON 17.09.2018, THE BENCH BASED UPON THE WRITTEN ADJ OURNMENT APPLICATION DATED 14.09.2018 FILED BY THE ASSESSEE WAS PLEASED TO GRANT ADJOURNMENT FIXING THE NEXT DATE OF HEARING TO 17.10.2018. THUS , EFFECTIVELY 17.10.2018 WAS THE SECOND DATE OF HEARING OF THESE APPEALS BEFORE THE BENCH , WHEN THE MATTER WAS HEARD EX - PARTE BY THE BENCH IN THE ABSENCE OF THE ASSESSEE AS NONE APPEARED ON BEHALF OF THE ASSESSEE. THE ASSESSEE HAS MOVED THESE TWO MAS SEEKING RECALLING OF THE COMMON APPELLATE ORDER DATED 24.10.2018 PASSED BY TRIBUNAL FOR AY 2010 - 11 AND 2011 - 12 RES PECTIVELY . THE ASSESSEE HAS ALSO FILED TWO SEPARATE AFFIDAVIT S BOTH DATED 22.04.2019 EXECUTED BY ITS DIRECTOR SHRI NIKHIL CHHEDA FOR BOTH THESE AYS , WHICH ARE PLACED IN MA FILES. THE SAID AFFIDAVIT FOR AY 2010 - 11 IS REPRODUCED HERE UNDER: MA NO. 281 & 282/MUM/2019 ARISING OUT OF ITA NO. 1485 & 1486/MUM/2017 4 | P A G E MA NO. 281 & 282/MUM/2019 ARISING OUT OF ITA NO. 1485 & 1486/MUM/2017 5 | P A G E 3.2 AS COULD BE SEEN FROM AFORESAID AFFIDAVIT, THE ASSESSEE HAS STATED THAT THEY ARE NOT AWARE OF THE PROCEDURES FOLLOWED BY TRIBUNAL AND THEY WERE NOT AWARE OF THE NEXT DATE OF HEARING FIXED BY TRIBUNAL ON 17.09.2018, WHEREIN MATTER WAS ADJOURNED TO NEXT DATE OF HEARING TO 17.10.2018 BY THE BENCH. MA NO. 281 & 282/MUM/2019 ARISING OUT OF ITA NO. 1485 & 1486/MUM/2017 6 | P A G E THE ASSESSEE HAS EXPLAINED IN THIS AFFIDAVIT THAT THEY WERE NOT AWARE OF THE DATE OF HEARING FIXED BEFORE THE BENCH FOR 17.10.2018 WHICH LED TO THEIR NON APPEARANCE ON 17.10.2018 AS THEY WERE EXPECTI NG FRESH NOTICE S OF HEARING FROM ITAT BUT NO FRESH NOTICE S WERE RECEIVED BY ASSESSEE FROM ITAT INTIMATING NEXT DATE OF HEARING TO 17.10.2018 . IT IS A MATTER OF RECORD THAT ON 17.10.2018, WHEN BOTH THESE APPEALS WERE CALL ED FOR HEARING BEFORE THE BENCH , NONE APPEARED ON BE HALF OF THE ASSESSEE AND THE BENCH WAS PLEASE D TO DISMISS BOTH THE APPEALS OF THE ASSESSEE FOR AY 2010 - 11 AND 2011 - 12 RESPECTIVELY. W E HAVE OBSERVED THAT THE FIRST EFFECTIVE DATE OF HEARING IN BOTH THESE APPEALS BEFORE THE BENCH TOOK PLACE ON 17.09.2018 WH EN THE ASSESSEE ENTERED APPEARANCE THROUGH WRITTEN LETTER DATED 14.09.2018 SEEKING ADJOURNMENT . IT IS ALSO CLAIMED THAT SOMEONE APPEARED FROM COUNSEL OFFICE ON 17.09.2018 BEFORE THE BENCH BUT THE ASSESSEE WAS NOT INTIMATED OF THE NEXT DATE OF HEARING TO 1 7.10.2018 . THE BENCH ON THE DATE OF HEARING ON 17.09.2018 ADJOURNED THE APPEALS TO NEXT DATE OF HEARING VIZ. 17.10.2018. THE ASSESSEE DID NOT ENTERED APPEARANCE ON THIS DATE OF HEARING VIZ. 17.10.2018, WHEN THE BENCH WAS PLEASED TO DISMISS ITS BOTH THE APPEALS EX - PARTE IN THE ABSENCE OF ASSESSEE. HOWEVER, THE FACTS REMAINS THAT THE ASSESSEE ENTERED APPEARANCE BEFORE TRIBUNAL ON 17.09.2018 VIDE WRITTEN LETTER DATED 14.09.2018 . THERE WERE ONLY TWO EFFECTIVE HEARING WHICH TOOK PLACE BEFORE THE BENCH IN THES E TWO APPEALS VIZ. ON 17.09.2018 AND 17.10.2018 BEFORE ITS DISMISSAL BY THE BENCH ON 17.10.2018 . THE CONDUCT OF THE ASSESSEEE DID NOT APPEAR TO BE MALICIOUS. THE ASSESSEE DID ENTERED APPEARANCES BEFORE AO DURING RE - ASSESSMENT PROCEEDINGS CONDUCTED BY THE AO U/S 147 READ WITH SECTION 143(3) OF THE 1961 ACT FOR BOTH THESE YEARS . THE ASSESSEE ALSO ENTERED APPEARANCES BEFORE LEARNED CIT(A) DURING APPELLATE PROCEEDINGS CONDUCTED BY LEARNED CIT(A) FOR BOTH THESE YEARS .. THE ASSESSEE IS NOT A HABITUAL NON - COMPLA INANT /OFFENDER WITH AUTHORITIES AND WE COULD NOT FIND ANY MALICE ON CONDUCT OF THE ASSESSEE IN NON APPEARANCE BEFORE THE BENCH ON 17.10.2018. THE ASSESSEE HAS IN OUR CONSIDERED VIEW SUFFICIENTLY EXPLAINED REASONS FOR NON APPEARANCE BEFORE THE BENCH ON 17. 10.2018 VIDE ORAL ARGUMENTS BEFORE THE BENCH AS WELL BY FILING SEPARATE AFFIDAVITS FOR BOTH THE YEARS FILED BEFORE THE TRIBUNAL. THE ASSESSEE IS MA NO. 281 & 282/MUM/2019 ARISING OUT OF ITA NO. 1485 & 1486/MUM/2017 7 | P A G E DEFINITELY PREJUDICED BY DISMISSAL OF BOTH ITS APPEAL EX - PARTE BY TRIBUNAL ON 17.10.2018 IN ITS ABSENCE. 3.3 UNDER THESE FACTS AND CIRCUMSTANCES AND KEEPING IN VIEW CONDUCT OF THE ASSESSEE , WE ARE OF THE CONSIDERED VIEW THAT BOTH THESE MAS ARE TO BE ALLOWED AND THE COMMON APPELLATE ORDER DATED 24.10.2018 PASSED BY TRIBUNAL IN ITA NO. 1485 & 1486/MUM/2017 FOR AY 2010 - 11 AND 2011 - 12 RESPECTIVELY ARE HEREBY ORDERED TO BE RECALLED AND PLACED BEFORE THE REGULAR BENCH FOR HEARING ON 16.08.2019 . THE REGISTRY IS DIRECTED TO ISSUE NOTICE TO BOT H THE PARTIES IN ITA NO. 1485 & 1486 /MUM/2017 FOR AY 2010 - 11 AND 2011 - 12 RESPECTIVELY, INTIMATING NEXT DATE OF HEARING BEFORE THE BENCH ON 16.08.2019 . 4 . THUS, BOTH THESE M.A. NOS. 281 & 28 2 /MUM/2019 ARISING OUT OF APPEAL S IN ITA NO. 1485 & 1486/MUM/2017 FOR AY 2010 - 11 & 2011 - 12 RESPECTIVELY , FILED BY THE ASSESSEE ARE ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 0 5 .07.2019 0 5 .07.2019 SD/ - SD/ - (SAKTIJIT DEY) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 0 5 .07.2019 COPY TO NISHANT VERMA SR. PRIVATE SECRETARY 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) CONCERNED, MUMBAI 4 . THE CIT - CON CERNED, MUMBAI 5 . THE DR BENCH, 6 . MASTER FILE MA NO. 281 & 282/MUM/2019 ARISING OUT OF ITA NO. 1485 & 1486/MUM/2017 8 | P A G E // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI