ISHWARSINGH BALWANT SINGH DEORA (ALIAS KISHOREKUMAR JAGDISHKUMAR SHAH), MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX- CENTRAL CIRCLE - 2(4), MUMBAI

MA 285/MUM/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7637 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 25-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER M.A. NO. 285 , 286, 287 & 288 /MUM./2019 ( ARISING OUT OF ITA NO. 7 73 , 774, 775 & 776 / MUM . /201 8) ( ASSESSMENT YEAR : 20 09 10 , 2011 12, 2012 13 & 2014 15 ) ISHWARSINGH BALWANT SINGH DEORA (ALIAS KIRHOREKUMAR GADISHKUMAR SHAH) 404, WING B, COZY HOME, OVERIPADA DAHISAR (E), MUMBAI 400 068 PAN AACPD8770C . APPELLANT V/S DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 2(4), MUMBAI . RESPONDENT ASSESS EE BY : SHRI SASHANK DUNDU REVENUE BY : SMT. JOTHILAKSHMI NAYAK DATE OF HEARING 21 .0 6 .2019 DATE OF ORDER 17.07.2019 O R D E R PER SAKTIJIT DEY. J.M. B Y FILING THESE APPLICATIONS, THE ASSESSEE SEEKS RECALL OF A CONSOLIDATED ORDER DATED 28 TH SEPTEMBER 2018, IN ITA NO.773, 774, 775 AND 776/MUM./2018. 2 . EXPLAINING THE REASON FOR NON REPRESENTATION IN THE APPEAL S BY THE ASSESSEE ON THE DATE OF HEARING FOR WHICH THE APPEALS WERE HEARD AND DECIDED EX PARTE, THE LEARNED AUTHORISED REPRESE NTATIVE SUBMITTED , DUE TO PERSONAL AND FAMILY RELATED ISSUE S , THE ASSESSEE HAD 2 ISHWARSINGH BALWANT SINGH DEORA TO FREQUENTLY TRAVEL TO HIS NATIVE PLACE. HE SUBMITTED , DUE TO LACK OF UNDERSTANDING AND CLARITY ON TAX LAW, THE ASSESSEE COULD NOT ALSO ENGAGE A COUNSEL TO REPRESENT HIS CASE B EFORE THE TRIBUNAL. HE SUBMITTED , THE AFORESAID REASONS LE D TO EX PARTE DISPOSAL OF THE APPEALS. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , THE NON APPEARANCE WAS NEITHER DELIBERATE NOR INTENTION AL BUT PURELY BECAUSE OF LACK OF UNDERSTANDING OF THE L EGAL PROCEDURE. HE SUBMITTED , THE ASSESSEE HAS A STRONG CASE ON MERIT WHICH CAN ONLY BE PROVED IF THE ASSESSEE IS GIVEN A P ROPER OPPORTUNITY OF BEING HEARD. THUS, HE SUBMITTED , THE EX PARTE ORDER PASSED MAY BE RECALLED IN EXERCISE OF POWER CONFERRED UNDER RULE 24 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES 1963. 3 . THE LEARNED DEPARTMENTAL REPRESENTATIVE OPPOSING ASSESSEES CONTENTION SUBMITTED, THE ASSESSEE IS A HABITUAL DEFAULTER AS HE HAS NOT APPEARED IN ANY PROCEEDINGS , EITHER BEFORE THE DEPARTMENTAL AUTHORITIES OR BEFORE THE TRIBUNAL. 4 . I HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS EVIDENT , ON THE DATE OF HEARING OF CORRESPONDING APPEALS, NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE TO RE PRESENT THE CASE, HENCE, THE BENCH PROCEEDED TO DISPOSE OF THE APPEAL S EX PARTE QUA THE ASSESSEE , THOUGH ON MERITS, AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE AND ON THE BASIS OF MATERIAL ON RECORD. IT 3 ISHWARSINGH BALWANT SINGH DEORA WAS ALSO NOTED BY THE TRIBUNAL THAT EVEN BE FORE THE DEPARTMENTAL AUTHORITIES, THE ASSESSEE HAS DEFAULTED IN APPEARING, THEREFORE, NOT ONLY THE ASSESSMENTS WERE COMPLETED EX PARTE BUT THE LEARNED COMMISSIONER (APPEALS) ALSO DISPOSED OFF THE APPEALS FILED BY THE ASSESSEE EX PARTE. THE AFORESAID FACTS SHOW THE CASUAL APPROACH OF THE ASSESSEE. IN VIEW OF THE AFORESAID, ORDINARILY, WE WOULD NOT HAVE ENTERTAINED THE PRESENT MISC. APPLICATIONS, HOWEVER, CONSIDERING THE SUBMISSIONS OF THE LEARNED AUTHORISED REPRESENTATIVE THAT DUE TO FAMILY RELATED PROBLEMS THE ASSESSEE HAD TO FREQUENTLY TRAVEL TO HIS NATIVE PLACE AND THE ASSESSEE HAD LACK OF UNDERSTANDING WITH REGARD TO TAX LITIGATION, TAKING A LENIENT VIEW I AM INCLINED TO RECALL THE EX PARTE ORDER PASSED DISPOSING OF THE APPEALS OF THE ASSESSEE. HOWEVER, SUCH RECALL OF THE APPEAL ORDER WOULD BE SUBJECT TO PAYMENT OF COST OF ` 500 PER EACH APPEAL , TOTALING TO ` 2,000, WHICH THE ASSESSEE SHOULD PAY TO PRIME MINISTERS RELIEF FUND WITHIN A PERIOD OF ONE WEEK FROM THE DATE OF RECEIPT OF THIS ORDER. THE PROOF O F SUCH PAYMENT SHOULD ALSO BE FURNISHED BEFORE THE REGISTRY. ON PAYMENT OF THE AFORESAID AMOUNT, AS DIRECTED, THE ORDER DATED 28 TH SEPTEMBER 2018, PASSED IN ITA NO.773, 774, 775 AND 776/ MUM./2018, WOULD STAND RECALLED AND THE CORRESPONDING APPEALS WOULD B E RESTORED TO ITS ORIGINAL POSITION AND ARE TO BE HEARD AFRESH IN DUE COURSE BY THE ASSIGNED BENCH. THE REGISTRY IS DIRECTED TO ISSUE NOTICE TO BOTH THE PARTIES INTIMATING THE FRESH DATE OF HEARING. 4 ISHWARSINGH BALWANT SINGH DEORA 5 . I N THE RESULT, MISC. APPLICATIONS ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN C OURT ON 17.07.2019 SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 17.07.2019 COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI