CHALLENGER COMPUTERS, Mumbai V. ITO 19(1)(3), Mumbai

MA 297/MUM/2022

AI Insights

Challenger Computers filed Miscellaneous Applications seeking recall of an ex-parte order passed by the Tribunal for the assessment years 2009-10 and 2010-11. The original appeals were dismissed due to the absence of the assessee's representation, as no notices were acknowledged or received by the assessee. Upon receiving a penalty order under section 271(1)(c) of the Income Tax Act, the assessee became aware of the Tribunal's decision and subsequently filed for a recall. The Tribunal, considering the affidavit and the circumstances presented, decided to recall the ex-parte order and scheduled a new hearing.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 300115 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-01-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 29-12-2022
• Assessment Year: 2009-2010
• Appeal Filed On: 17-10-2022
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, MUMBAI BEFORE SHRI AMARJIT SINGH, ACCOUNTANT MEMBER AND SHRI SANDEEP SINGH KARHAIL, JUDICIAL MEMBER M.A. no.297 & 298/Mum./2022 (Assessment Year : 2009–10) IN ITA no.3749 & 3750/Mum./2019 (Assessment Year : 2010–11) Challenger Computers 17, Ganga Building, 1 st Floor Opp. Police Station, Topiwala Lane Mumbai 400 007 PAN – AACFC3477B ................ Applicant v/s Income Tax Officer Ward–19(1)(3), Mumbai ................Respondent Assessee by : Shri K.J. Bafna Revenue by : Shri Tejinder Pal Singh Anand Date of Hearing – 30/12/2022 Date of Order – 03/01/2023 O R D E R PER SANDEEP SINGH KARHAIL, J.M. The present Miscellaneous Applications have been filed by the assessee seeking recall of the common ex–parte order dated 18/01/2021, passed under section 254(1) of the Income Tax Act, 1961 ("the Act") by the Co– ordinate Bench of the Tribunal in assessee’s appeals being ITAs no. 3749/Mum./2019 and 3750/Mum./2019, for the assessment years 2009–10 and 2010–11, respectively. Challenger Computers ITA no.297/Mum./2022 Page | 2 2. During the course of hearing, the learned A.R. submitted that the assessee's appeals were decided ex-parte as none appeared on behalf of the assessee on the date fixed for the hearing. The learned A.R. further submitted that the assessee did not receive even a single notice fixing the hearing of the appeals and therefore could not appear before the Tribunal on the date of the hearing. The learned A.R. submitted that only on receipt of the penalty order passed under section 271(1)(c) of the Act, the assessee came to know about the order passed by the Tribunal dismissing its appeals in quantum proceedings. Accordingly, the learned A.R. prayed for recall of the common ex-parte order passed by the Co-ordinate Bench of the Tribunal. The learned A.R. also gave an oral undertaking that he will be appearing in the appeal hearing as and when the same is listed. 3. On the other hand, the learned Departmental Representative vehemently opposed the prayer for recall of the order. 4. We have considered the rival submissions and perused the material available on record. It is the plea of the assessee that since the notices for hearing were not received, therefore, no representation could be made before the Tribunal on the date of hearing of the appeals on behalf of the assessee. From the perusal of the record, we find that notices were issued to the assessee on more than one occasion including through registered post. However, we find no acknowledgement of receipt of notice by or on behalf of the assessee in the record. The Co–ordinate Bench of the Tribunal in the absence of representation on behalf of the assessee proceeded to decide the appeals filed by the assessee ex–parte qua the assessee after hearing the Challenger Computers ITA no.297/Mum./2022 Page | 3 submissions of the Revenue and perusal of the material available on record. By way of the present Miscellaneous Applications, the assessee has sought recall of the aforesaid common order dated 18/01/2021. The present Miscellaneous Applications are also supported by an Affidavit of the partner of the assessee. In view of the submissions made in the Affidavit supporting the present Miscellaneous Applications, we are of the considered view that there was sufficient cause for non–appearance on behalf of the assessee when the appeals were called for hearing. Therefore, we deem it fit and appropriate to recall the aforesaid ex–parte order dated 18/01/2021, passed in assessee’s appeals being ITAs no. 3749/Mum./2019 and 3750/Mum./2019, for a fresh hearing of the appeals on merits. In view of the undertaking given by the learned A.R. that he will be appearing in the appeal hearing, the appeals are fixed for hearing on 15/02/2023, i.e., the date convenient to both parties. Since the date of the hearing is pronounced in the open Court, the service of notice to the parties is hereby dispensed with. 5. In the result, present Miscellaneous Applications filed by the assessee are allowed. Order pronounced in the open Court on 03/01/2023 Sd/- AMARJIT SINGH ACCOUNTANT MEMBER Sd/- SANDEEP SINGH KARHAIL JUDICIAL MEMBER MUMBAI, DATED: 03/01/2023 Challenger Computers ITA no.297/Mum./2022 Page | 4 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