DINESH V. SHAH, MUMBAI V. DCIT CENTRAL CIR-3(4, MUMBAI

MA 287/MUM/2022

AI Insights

The case involves Dinesh Shah and Dinesh Shah (HUF) as applicants, who filed miscellaneous applications seeking recall of ex parte orders passed by the Income Tax Appellate Tribunal. These orders were related to various assessment years and were issued due to the non-appearance of the applicants' representatives. The applicants' counsel argued that the absence was due to a clerical mistake, where the hearing dates were incorrectly noted, leading to no representation at the scheduled hearings. The Tribunal considered the affidavit submitted by the clerk, acknowledging the mistake and the sufficient cause for non-appearance, and decided to recall the ex parte orders and restore the appeals.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 123333 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-01-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 22-12-2022
• Assessment Year: 2008-2009
• Appeal Filed On: 13-10-2022
• Laws Referred To: ITAT Rules, 1963
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “D” MUMBAI BEFORE SHRI AMIT SHUKLA (JUDICIAL MEMBER) AND SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) M.A. No.287/Mum/2022 (Arising out of ITA No.1153/Mum/2020) (Assessment Year : 2008-09) Dinesh Shah Flat No.434, Shabri Shikhar R.C. Marg, Chembur (W) Mumbai-400 071 PAN No. AAEPS1245F Vs. Dy.CIT, Central Circle-3(4) Mumbai Applicant Respondent M.A. Nos.288 to 291/Mum/2022 (Arising out of ITA Nos.1150, 1149, 1148 & 1147/Mum/2020) (Assessment Years : 2010-11, 2011-12, 2012-13 & 2013-14) Dinesh Shah (HUF) Flat No.434, Shabri Shikhar R.C. Marg, Chembur (W) Mumbai-400 071 PAN No. AADHS0544N Vs. Dy.CIT, Central Circle-3(4) Mumbai Applicant Respondent Assessees by : Shri Rasesh Shah Revenue by : Shri Tejinder Pal Singh Anand, Sr.AR Date of Hearing : 23/12/2022 Date of pronouncement : 05/01/2023 PER OM PRAKASH KANT, AM By way of these seeking recall of the order of the Tribunal dated 15/09/2022 passed in ITA No. 1153/Mum/2020 1147/Mum/2020 for respective assessment years. 2. The Ld.Counsel of the assessee referred to the respective miscellaneous applications and submitted the part of the clerk of the authorized representative of the assessee, no one could attend before the Tribunal and, therefore, exparte order was passed. The Ld.Counsel submitted that in view of the sufficient cause for not putting Tribunal, the order of the Tribunal might be 3. We have heard rival submissions of the parties and perused the relevant materials on record. affidavit from the clerk, working in the office of Authorised M.A. 2 ORDER PER OM PRAKASH KANT, AM e miscellaneous applications, the the order of the Tribunal dated 15/09/2022 1153/Mum/2020 & ITA Nos.1150, 1149, 1148 & for respective assessment years. The Ld.Counsel of the assessee referred to the respective miscellaneous applications and submitted that due to mistake on the part of the clerk of the authorized representative of the assessee, no one could attend before the Tribunal and, therefore, exparte order was passed. The Ld.Counsel submitted that in view of the sufficient cause for not putting up appearance before the Tribunal, the order of the Tribunal might be recalled We have heard rival submissions of the parties and perused the relevant materials on record. The assessee has submitted an affidavit from the clerk, working in the office of Authorised Dinesh Shah M.A. 287/Mum/2022 & MAs 288 to 291/Mum/2022 2 llaneous applications, the assesses are the order of the Tribunal dated 15/09/2022 ITA Nos.1150, 1149, 1148 & for respective assessment years. The Ld.Counsel of the assessee referred to the respective that due to mistake on the part of the clerk of the authorized representative of the assessee, no one could attend before the Tribunal and, therefore, exparte order was passed. The Ld.Counsel submitted that in view up appearance before the recalled. We have heard rival submissions of the parties and perused has submitted an affidavit from the clerk, working in the office of Authorised Representative, Shri Rasesh Shah. Shyam Babubhai Mangukiya for hearing on 05/09/202 diary as 02/11/2022. The relevant submission made in the affidavit is reproduced as under: “8. The two matters pertaining to the assessees being Dinesh Shah HUF in ITA No. 1151/MUM/2020 and Dinesh Shah in 1152/MUM/2020 were pertaining to Honourable SMC Bench of Mumbai. The representative of CA Rasesh Shah attended the matter for the purpose of adjournment before Honourable SMC Bench of Mumbai Tribunal on 24.08,2022 when it was posted for hearing. For this purpose, the adjournment letter w Himanshu Gandhi based at Mumbai through e Subsequently, this matter was fixed for hearing and again the compliance was made. Because of the adjournments the matters are still pending. 9. This affidavit is executed by me was handling the matter as an article clerk from the back office and through oversight I made the mistake of making noting of the date of hearing 4. We find that the assessee because of mistake on the part of the clerk of the authorized representative of the assessee. In our view, this constitute a sufficient cause where assessee has been prevented from putting appearance and, ther the order of the Tribunal dated 15/09/2022 passed in all these appeals and restore the appeals in its original number. The Registry is directed to fix the appeals for hearing in due course and intimate the parties M.A. 2 Representative, Shri Rasesh Shah. In the affidavit file Shyam Babubhai Mangukiya has stated that the matter was fixed for hearing on 05/09/2023, however, he recorded diary as 02/11/2022. The relevant submission made in the affidavit is reproduced as under:- 8. The two matters pertaining to the assessees being Dinesh Shah HUF in ITA No. 1151/MUM/2020 and Dinesh Shah in 1152/MUM/2020 were Honourable SMC Bench of Mumbai. The representative of CA Rasesh Shah attended the matter for the purpose of adjournment before Honourable SMC Bench of Mumbai Tribunal on 24.08,2022 when it was posted for hearing. For this purpose, the adjournment letter w Himanshu Gandhi based at Mumbai through e-mail dated 22.08.2022. Subsequently, this matter was fixed for hearing and again the compliance was made. Because of the adjournments the matters are still pending. This affidavit is executed by me, the deponent Shri Shyam Mangukiya as I was handling the matter as an article clerk from the back office and through oversight I made the mistake of making noting of the date of hearing We find that the assessee could not be represented before the Tribunal because of mistake on the part of the clerk of the authorized representative of the assessee. In our view, this constitute a sufficient cause where assessee has been prevented from putting appearance and, therefore, we feel it appropriate to recall the order of the Tribunal dated 15/09/2022 passed in all these appeals and restore the appeals in its original number. The Registry is directed to fix the appeals for hearing in due course and intimate the parties accordingly. Dinesh Shah M.A. 287/Mum/2022 & MAs 288 to 291/Mum/2022 3 In the affidavit filed by Shri that the matter was fixed owever, he recorded the date in his diary as 02/11/2022. The relevant submission made in the 8. The two matters pertaining to the assessees being Dinesh Shah HUF in ITA No. 1151/MUM/2020 and Dinesh Shah in 1152/MUM/2020 were Honourable SMC Bench of Mumbai. The representative of CA Rasesh Shah attended the matter for the purpose of adjournment before Honourable SMC Bench of Mumbai Tribunal on 24.08,2022 when it was posted for hearing. For this purpose, the adjournment letter was sent to CA mail dated 22.08.2022. Subsequently, this matter was fixed for hearing and again the compliance was made. Because of the adjournments the matters are still pending. , the deponent Shri Shyam Mangukiya as I was handling the matter as an article clerk from the back office and through oversight I made the mistake of making noting of the date of hearing.” could not be represented before the Tribunal because of mistake on the part of the clerk of the authorized representative of the assessee. In our view, this constitute a sufficient cause where assessee has been efore, we feel it appropriate to recall the order of the Tribunal dated 15/09/2022 passed in all these appeals and restore the appeals in its original number. The Registry is directed to fix the appeals for 5. In the result, all the miscellaneous applications allowed. Order pronounced under Rule 34(4) of the ITAT Rules, 1963 on 05/01/2023. Sd/- (AMIT SHUKLA JUDICIAL MEMBER Mumbai; Dated: 05/01/2023 Rahul Sharma, Sr. P.S. Copy of the Order forwarded to 1. The Appellant 2. The Respondent. 3. The CIT(A)- 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// M.A. 2 sult, all the miscellaneous applications allowed. Order pronounced under Rule 34(4) of the ITAT Rules, /2023. - sd/ AMIT SHUKLA) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT MEMBER Copy of the Order forwarded to : BY ORDER, (Sr. Private Secretary) ITAT, Mumbai Dinesh Shah M.A. 287/Mum/2022 & MAs 288 to 291/Mum/2022 4 Order pronounced under Rule 34(4) of the ITAT Rules, sd/- OM PRAKASH KANT) ACCOUNTANT MEMBER BY ORDER, (Sr. Private Secretary) ITAT, Mumbai