SURESH A. GANDHI, V. ADDL CIT RG 24(2),

MA 29/MUM/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0608 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-07-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 19-07-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 23-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIVEK BATRA
• Keywords: Reasonable cause

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, M UMBAI BEFORE S/SHRI B.R.MITTAL,(JM) AND SANJAY ARORA (AM) . . , , & MISCELLANEOUS APPLICATION NO.29/MUM/2013 (ARISING OUT OF ./I.T.A. NO.2915/MUM/2011 ( / ASSESSMENT YEAR:2007-08) SHRI SURESH A GANDHI, 18/D, SHANAZ, NEPEAN SEA ROAD, MUMBAI-400006. / VS. ADDL. COMMISSIONER OF INCOME TAX , RANGE 24(2), MUMBAI ./ ./PAN/GIR NO. : AACPG9382P ( % / APPELLANT) .. ( &'% / RESPONDENT) % / APPELLANT BY : SHRI NITESH JOSHI &'% ) /RESPONDENT BY : SHRI VIVEK BATRA ) - / DATE OF HEARING : 19.7.2013 ) - /DATE OF PRONOUNCEMENT : 26.07.2013 / O R D E R PER B.R.MITTAL, JM: BY THIS MISCELLANEOUS APPLICATION FILED UNDER SEC TION 254(2) OF THE INCOME TAX ACTY, 1961(THE ACT), ASSESSEE HAS PRAYED TO RECALL THE EX-PARTE ORDER PASSED BY THE TRIBUNAL DATED 8.2.2012 IN ITA NO.2915/MUM/2011 ON THE GROUND THAT THE ASSESSEE DID NOT RECEIVE NOTICE FIXING THE DATE OF HEARING OF TH E APPEAL ON 8.2.2012. 2. AT THE TIME OF HEARING, IT WAS OBSERVED THAT ASS ESSEE HAD EARLIER FILED MISCELLANEOUS APPLICATION BEING MA NO.463/MUM/2012 TO RECALL THE ABOVE ORDER DATED 8.2.2012 AND THE SAID APPLICATION WAS FIXED FOR HAR ING ON 19.10.2012 3. HOWEVER, THE TRIBUNAL DISMISSED THE SAID MISCE LLANEOUS APPLICATION VIDE ITS ORDER DATED 19.10.2012 OBSERVING THAT THE NOTIC E SENT TO THE ASSESSEE FIXING THE DATE OF HEARING OF THE SAID MA BEING MA NO.463/MUM/2012 WAS RECEIVED BACK UNSERVED AND THE ASSESSEE HAD NOT GIVEN ANY OTHER ADDRESS TO THE REGISTRY TO SEND NOTICE TO THE MISCELLANEOUS APPLICATION NO.29/MUM/2013 2 ASSESSEE. THE ASSESSEE BY THIS PRESENT MISCELLANEO US APPLICATION BEING MA NO.29/MUM/2013 HAS STATED AND ALSO REITERATED THAT AT THE TIME OF HEARING THIS MISCELLANEOUS APPLICATION THAT THE ASSESSEE DID NO T RECEIVE THE NOTICE FIXING HEARING ON 19.10.2012 AND THEREFORE NONE APPEARANCE ON BEHALF OF THE ASSESSEE AT THE TIME OF HEARING OF THE MAIN APPEAL AS WELL AS THE HEARING OF THE MA WAS NOT DELIBERATE BUT DUE TO A REASONABLE CAUSE THAT THE ASSESSEE DID NOT RE CEIVE THE NOTICE. AT THE TIME OF HEARING, A QUERY WAS RAISED AS TO WHETHER THE TRIB UNAL SHOULD CONSIDER THE SECOND MA CONSIDERING THIS MA AS AN APPLICATION IN THE ORDER PASSED BY THE TRIBUNAL IN THE EARLIER MA I.E ORDER DATED 19.120.2012. LD.AR SUBMITTED TH AT THE ORDER PASSED IN MA NO.463/MUM/2012 IS NOT AN ORDER ON MERITS AS THE SA ME WAS DISMISSED FOR NON PROSECUTION BECAUSE THE ASSESSEE DID NOT RECEIVE NO TICE AND THE MA OF THE ASSESSEE WAS DISMISSED. HE SUBMITTED THAT THERE WILL BE A N INJUSTICE TO THE ASSESSEE IF THE EX- PARTE ORDER PASSED BY THE TRIBUNAL DATED 8.2.2012 IS NOT RECALLED AS THE APPEAL OF THE ASSESSEE WAS DISMISSED FOR NON-APPEARANCE OF THE AS SESSEE. AT THE TIME OF HEARING, LD.AR BESIDES, REITERATING ABOVE FACTS FURTHER REF ERRED RULE 24 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 AND STATED THAT AC CORDING TO THIS RULE, THE TRIBUNAL IS DUTY BOUND TO DECIDE THE APPEAL ON MERITS EVEN IF THE APPELLANT DOES NOT APPEAR IN PERSON OR THROUGH AN AUTHORIZED REPRESENTATIVE WHEN THE APPEAL IS CALLED OUT FOR HEARING. WE DO NOT FIND SUBSTANCE IN THE SAID SUBM ISSIONS OF LD.AR AS IT IS WELL SETTLED THAT MERELY FILING OF APPEAL BY A PARTY IS NOT SUFF ICIENT AND THE ASSESSEE IS ALSO DUTY BOUND TO CO-OPERATE AND PRESENT THE NECESSARY MATE RIAL TO ENABLE THE BENCH TO CONSIDER THE ISSUE INVOLVED IN THE APPEAL ON MERITS . THE ASSESSEES RESPONSIBILITY IS TO ASSIST THE BENCH IN BRINGING THE MATERIAL ON RECOR D TO CONSIDER THE ISSUE ON MERITS. IN THIS REGARD WE ARE SUPPORTED BY THE DECISION OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT V/S B.N.BHATTARCHARGEE AND ANOTHER, 118 ITR 460,( RELEVANT PAGES 477- 478), WHEREIN THEIR LORDSHIPS HAVE HELD THAT THE APPEAL DOES NOT MEAN MERELY FILING OF THE APPEAL BUT EFFECTIVELY PURSUING IT. 4. BE THAT AS IT MAY, WE OBSERVE THAT THE FACTS I N THE CASE BEFORE US, ARE SOME WHAT PECULIAR AND ARE DISTINGUISHABLE. WE OBSERVE THAT WHEN THE NOTICE FOR HEARING OF THE MA FILED BY THE ASSESSEE FOR THE FIRST TIME B EING MA NO.463/MUM/2012 WAS SENT TO THE ASSESSEE, THE SAID NOTICE WAS RECEIVED BACK UN-DELIVERED. WE OBSERVE THAT THE ADDRESS OF THE ASSESSEE IS NOT CHANGED AND IT IS OB SERVED FROM THE MATERIAL PLACED ON RECORD, THAT IT IS NOT A CASE WHERE THE ASSESSEE R EFUSED TO ACCEPT THE NOTICE. IT APPEARS THAT THERE IS SOME LAPSES ON THE PART OF POSTAL DEPARTMENT IN MAKING SERVICE MISCELLANEOUS APPLICATION NO.29/MUM/2013 3 OF NOTICE. THEREFORE, WE ARE OF THE CONSIDERED VIE W THAT EARLIER MA FILED BY THE ASSESSEE WAS DISMISSED VIDE ORDER DATED 19.10.2012 PRESUMIN G THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING THE SAID MA. HOWEVER, ASSE SSEE STATES THAT NO NOTICE WAS RECEIVED AND WE FIND SUBSTANCE IN ABOVE SUBMISSIO NS AS THERE IS NO MATERIAL ON RECORD TO CONTROVERT IT . THEREFORE, WE ARE OF THE CONSID ERED VIEW THAT THE PRESENT MA FILED BY THE ASSESSEE CANNOT BE CONSIDERED THAT IT IS A MIS CELLANEOUS APPLICATION AGAINST THE ORDER PASSED BY THE TRIBUNAL DATED 19.10.2012 IN MA NO.463/MUM/2012. CONSIDERING THE FACTS OF THE CASE IT ALSO APPEARS THAT IT IS N OT A DELIBERATE ATTEMPT OF THE ASSESSEE TO DELAY THE PROCEEDINGS. HOWEVER, AT THE TIME OF H EARING, LD. DR OPPOSED THE PRESENT MA OF THE ASSESSEE ON THE GROUND THAT TRIBUNAL HAS NO POWER TO RECALL ITS ORDER PASSED IN MA NO.463/MUM/2012. 5. WE ARE OF THE CONSIDERED VIEW THAT WE ARE NOT RE CALLING OUR ORDER PASSED IN MA NO.463/MUM/2012 VIDE 19.10.2012 VIDE WHICH WE DIS MISSED THE MA OF THE ASSESSEE AS NO-ONE APPEARED ON BEHALF OF THE ASSESSEE AND BY THIS ORDER WE ARE CONSIDERING THE ORDER PASSED BY THE TRIBUNAL DATED 8.2.2012 WHICH W AS EX-PARTE ORDER DISMISSING THE APPEAL OF THE ASSESSEE IN-LIMINE AS NO ONE APPEARE D ON BEHALF OF THE ASSESSEE ON THE DATE FIXED FOR HEARING. AS ASSESSEE HAS GIVEN A RE ASONABLE CAUSE FOR NON-APPEARANCE AT THE TIME OF HEARING OF THE APPEAL, AND CONSIDERI NG THE ABOVE FACTS AND IN THE INTEREST OF JUSTICE WE RECALL OUR EX-PARTE ORDER DATED 8.2. 2012 READ WITH OUR ORDER DATED 19.10.2012. HENCE WE DIRECT THE REGISTRY TO FIX T HE APPEAL FOR HEARING IN DUE COURSE AFTER GIVING NOTICES TO THE PARTIES 6. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 26TH JULY , 2013 . ) 2 4 5 26TH JULY, 2013 ) SD SD ( /SANJAY ARORA) ( . . ;' /B.R.MITTAL) / ACCOUNTANT MEMBER 2 / JUDICIAL MEMBER MUMBAI; 5 DATED 26 / 07/2013 . . ./ PARIDA , SR. PS MISCELLANEOUS APPLICATION NO.29/MUM/2013 4 * +, -, / 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. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , / ITAT, MUMBAI