DECCAN ENTERPRISES, V. ASST CIT WD 19(3),

MA 299/MUM/2015

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5465 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2001-2002
• Appeal Filed On: 28-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI . . , , BEFORE SHRI C.N. PRASAD , JM AND SHRI RAJESH KUMAR , AM MISCEL LANEOUS APPLICATION NOS.299/MUM/2015 ARISING OUT OF ./ I.T.A. NO .3153/MUM/2011 ( / ASSESSMENT YEARS: 2001 - 2 002 ) DECCAN ENTERPRISES 32, DECCAN COURT, 259, S.V. ROAD, BANDRA (W), MUMBAI 400 050. / VS. ACIT 19(3) IT OFF ICES, PIRAMAL CHAMBERS, LALBAUG, MUMBAI 400 012 ./ PAN : PAN NO.: AAAFD 2751 M ( / APP LICANT ) : ( / RESPONDENT ) / APP LICANT BY : SHRI K GOPAL AND MS.NEHA PARANJAPE /RESPONDENT B Y : SHRI M V RAJGURU / DATE OF HEARING : 20.1.2017 / DATE OF PRONOUNCEMENT : 2. .2.2017 / O R D E R PER RAJESH KUMAR, A. M: BY WAY OF THIS MISCELLANEOUS APPLICATION THE ASSESSEE IS SEEKING RESTORATION OF EX - PARTE ORDER PASSED BY THE TRIBUNAL VIDE ORDER DATED 17.12.2012 FOR THE WANT OF PROSECUTION. 2. THE LD.AR OF THE ASSESSEE SUBMITTED THAT THE PERSON SHRI R. C. SAMPAT , WHO WAS SUPPOSE D TO ATTEND THE APPEAL , WAS SUFFERING FROM 2 MA 299 /MUM/201 5 SE RIOUS HEALTH AILMENTS AN D WAS UND ERGOING MEDICAL TREATMENT DURING THE THIS PERIOD. THE LD. AR SUBMITTED THAT IN ABSENCE OF SHRI R C SAMPAT NOBODY ATTEND ED THE HEARING ON THE DATE FIXED. THE LD. AR SUBMITTED THAT THE CASE WAS FIRST ADJOURNED AT THE REQUEST OF ASSESSEE ON 2.4.2012 AND THEREAFTER BENCH DID NOT FUNCTION ON TWO OCCASIONS AND FINALLY THE ASSESSEE RECEIVED EX - PARTE ORDER DISMISSING THE APPEAL OF THE ASSESSEE. THE LD. AR FURTHER SUBMITTED THAT THE NON ATTENDANCE BEFORE THE BENCH WAS NOT INTENTIONAL AND NOR MOTIVATED BUT ATTRI BUTED TO THE CIRCUMSTANCES BEYOND THE CONTROL OF THE ASSESSEE. THE LD.AR FOR THE ASSESSEE REQUESTED FOR RECALLING THE EX - PARTE ORDER OF THE TRIBUNAL BY PLAC ING RELIANCE ON THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF MEGHI KANJI P ATEL V/S KUNDANMAL CHANMANLAL AIUT 1968 BOM.387 AND ALSO THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF PUWADA VENTAKESWARA RAO V/S CHINDAMANA VENKATA RAMANA AIR 1976 SC 868 (871). ON THE BASIS OF THESE SUBMISSIONS, THE LD.AR PRAYED THAT THE EX - PARTY ORDER BE RECALLED AND THE ASSESSEE BE GIVEN ONE MORE OPPORTUNITY TO PRESENT ITS CASE . 3 . THE LD. DR DID NOT CONTROVERT THE FACTUAL ASPECT OF THE MATTER. 4 . WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS DOCUMENT S RELIED UPON BY THE ASSESSEE. WE FIND THAT THE EX - PARTE ORDER PASSED BY THE TRIBUNAL FOR WANT OF PROPER SERVICE OF NOTICE. WE ALSO FIND FROM THE RECORD THAT THE RE ASONS ADVANCED BY THE LD.AR FOR 3 MA 299 /MUM/201 5 NON APPEARING BEFORE THE TRIBUNAL AT THE TIME OF HEARING OF APPEAL APPEAR TO BE GENUINE AND THERE IS NO MALAFIDE INTENSION OF THE ASSESSEE TO DELAY THE APPEAL KNOWINGLY . WE ALSO FIND THAT THE CASE LAW RELIED UPON BY THE ASSESSEE SUPPORT THE CASE OF ASSESSEE . WE, TH EREFORE, RECALL OUR ORDER DATED 17.12.2012 AND D IRECT THE REGISTRY TO FIX THE HEARING OF THE AP PEAL IN THE REGULAR COURSE OF HEARING. 5 . RESULTANTLY, THE MISC. APPLICATION IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 2ND FEB 2017. S D SD ( C.N. PRASAD ) ( RAJESH KUMAR) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 2 ND FEB,2017 SRL,SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, T RUE COPY / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI