KISHORE DUBEY, V. ITO 24(3)(1),

MA 299/MUM/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2372 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-09-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 06-06-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N PADMANABAN
• Assessee Lawyers: RAM UPADHYAY
• Keywords: Reasonable cause

Judgement Text

INCOME TAX APPELLATE TRIBUNAL,MUMBAI - D BENCH , , BEFORE S/SH. RAJENDRA,ACCOUNTANT MEMBER & SHRI SANJAY GARG, JUDICIAL MEMBER MA NO.299/MUM/2014-ARISING OUT OF ITA NO.6142/M UM/2009-ASSESSMENT YEAR 2005-06 KISHORE DUBEY 3, SATWANT VILLA, AAREY ROAD, GOREGAON WEST,MUMBAI-400062 PAN:AABPD7612E VS. ITO 24(3)(1), NAVI MUMBAI. ( / APPELLANT) ( / RESPONDENT) APPELLANT BY : SHRI RAM UPADHYAY RESPONDENT BY : SHRI N. PADMANABAN ! / DATE OF HEARING : 26-09-2014 '#$% ! / DATE OF PRONOUNCEMENT : 26-09-2014 &' / O R D E R PER RAJENDRA, A.M. : VIDE HIS APPLICATION,DATED 04.06.2014,THE ASSESSEE HAS REQUESTED TO RESTORE MISCELLANEOUS APPLICATION. THE APPLICATION IS ACCOMPANIED BY AN A FFIDAVIT DATED 30.05.2014. IN THE AFFIDAVIT IT IS STATED THAT ASSESSEE HAD ENGAGED ADVOCATE FIRM M/S LAW COMPETERE CONSULTUS FOR REPRESENTING HIM BEFORE THE TRIBUNAL, THAT ON 26.02.2014 TRIBUNA L HAD DISMISSED HIS APPEAL IN DEFAULT FOR NONE- PROSECUTION, THAT BECAUSE OF THE MISTAKE OF THE JUN IOR ADVOCATE RESTORATION APPLICATION COULD NOT BE FILED TILL DATE,THAT THE APPLICATION WAS DELAYED BY 27 DAYS, THAT ASSESSEE WAS PREVENTED FROM FILING RESTORATION APPLICATION BY A REASONABLE CAUS E.DURING THE COURSE OF HEARING BEFORE US, AUTHRISED REPRESENTATIVE(AR) MADE THE SAME SUBMISSI ON THAT ARE PART OF THE AFFIDAVIT. DEPARTMENTAL REPRESENTATIVE (DR) OPPOSED THE APPLIC ATION FILED BY THE ASSESSEE. WE HAVE HEARD THE RIVAL SUBMISSION AND PERUSED THE MATERIAL BEFOR E US. 2. WE FIND THAT IN THIS CASE APPEAL WAS FIXED FOR HEAR ING ON 19.02.2012,THAT AT THE REQUEST OF THE COUNSEL OF THE ASSESSEE IT WAS ADJOURNED TO 22.03.2 012, THAT NOBODY APPEARED ON THAT DATE, THAT APPLICATION FOR ADJOURNING THE CASE WAS ALSO NOT FI LED BY THE ASSESSEE.CONSIDERING THESE FACTS AND THE FACT THAT APPEAL FILED BY THE ASSESSEE WAS BARR ED BY LIMITATION FOR 42 DAYS AND THE FACT THAT NOBODY HAD APPEARED BEFORE THE FIRST APPELLATE AUTH ORITY (FAA), THE APPEAL FILED BY THE ASSESSEE WAS DISMISSED ON 22.03.2012.THE TRIBUNAL ALSO TOOK NOTE OF THE FACTS THAT APPEAL FILED BY THE ASSESSEE WAS ALSO DISMISSED BY THE TRIBUNAL ON 16.0 7.2010 AND LATER ON THE ORDER WAS RECALLED BY IT,VIDE ITS ORDER DATED 18.03.2012. WE FURTHER FIND THAT THE MATTER WAS FIXED FROM TIME TO TIME AFTER THE ORDER RESTORATION ORDER OF THE TRIBUAN,THAT ON 16.02.2014 MATTER WAS CALLED FOR BU T NOBODY APPEARED ON BEHALF OF THE ASSESSEE NOR ANY APPLICATION FOR ADJOURNMENT WAS RECEIVED BY THE TRIBUNAL.AFTER CONSIDERING THE MATERIAL AVAILABLE ON RECORD,DELAY OF 22 DAYS IN FILING THE APPEAL WAS CONDONED BY THE TRIBUNAL,VIDE ITS ORDER DATED 26.02.2014(ITA/6142/MUM/2009).WHILE DEC IDING THE APPEAL THE TRIBUNAL HAS DECIDED THE APPEAL ON MERITS. IT WAS HELD THAT AD-H OC DISALLOWANCE OF EXPENSES, BEING 50% OF THE EXPENSES CLAIMED AND THE DISALLOWANCE OF UNSECURED LOAN OF RS. 1.45 LAKHS WAS AGITATED BEFORE 2 M.A.NO.299/MUM/2014 KISHORE DUBEY THE FAA, THAT THE FAA HAD RESTRICTED THE ADHOC DISA LLOWANCE TO THE EXTENT OF 25%, THAT HE HAD CONFIRMED THE ADDITION OF RS. 1.45 LAKHS, THAT THE ASSESSEE HAD NOT PRODUCED ANY EVIDENCE/ CONFIRMATION LETTER BEFORE THE AO/FAA,THAT THE ADDI TION MADE BY THE FAA WAS JUSTIFIED. AS THE APPEAL FILED BY THE ASSESSEE HAS BEEN DECIDE D ON MERITS AND THERE IS NO MISTAKE APPARENT ON THE FACE OF THE RECORDS, THEREFORE,WE DO NOT WANT T O INTERFERE IN IMPUGNED THE ORDER OF THE TRIBUNAL.IN OUR OPINION,THE MATTER CANNOT ALSO BE R ECALLED OR RESTORED AS THE TRIBUNAL IS NOT EMPOWERED TO REVIEW IT ORDER OR RECALL ITS ORDER WI THOUT REASONABLE CAUSE.THEREFORE,WE REJECT THE APPLICATION FILED BY THE ASSESSEE. AS A RESULT,MISCELLANEOUS APPLICATI N FILED BY THE ASSESSEE STAND DISMISSED. (%) * (%) * (%) * (%) * ,( ,( ,( ,( - - - - . . . . / / / / 00, 00, 00, 00, & & & & 1 11 1 2 2 2 2 / / / / 34 3434 34 . ORDER PRONOUNCED IN THE OP EN COURT ON 26TH,SEPTEMBER,2014. &' '#$% )5 / 26 FLRACJ FLRACJ FLRACJ FLRACJ 201 4 # 9 SD/- SD/ - ( / SANJAY GARG) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER ): / MUMBAI, / /DATE: 26.09.2014 SK &' &' &' &' 0 0 0 0 ;0$ ;0$ ;0$ ;0$ / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ :< & &= , 4. THE CONCERNED CIT / :< & &= 5. DR D BENCH, ITAT, MUMBAI / 0> , ?@ , & . . . ): 6. GUARD FILE/ ? A 0 //TRUE COPY// &' / BY ORDER, B / 3 DY./ASST. REGISTRAR & ,% , ): /ITAT, MUMBAI