DEEPAK JAIN, V. ITO 33(1)(4),

MA 301/MUM/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5848 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 07-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NISHANT SAMAIYA
• Assessee Lawyers: R C JAIN
• Keywords: Bonafide mistake; Set aside

Judgement Text

P A G E | 1 M.A. NO. 301/MUM/2016 A.Y. 2006 - 07 (ARISING OUT OF ITA NO.5120/MUM/2011) DEEPAK JAIN VS. THE INCOME TAX OFFICER - 33(1)(4) IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER M.A. NO. 301/MUM/2016 (ARISING OUT OF ITA NO. 5120/MUM/2011) (ASSESSMENT YEARS: 2006 - 07 ) DEEPAK JAIN VISHNU SHIVAM, 1705 B WING, 17 TH FLOOR, THAKUR VILLAGE, KANDIVALI (EAST) MUMBAI VS. THE INCOME TAX OFFICER 33(1)(4) ROOM NO. 708, 7 TH FLOOR, C - 12, B.K.C BANDRA (EAST), MUMBAI 400051 PAN AACPJ1817E (APPLICANT) (RESPONDENT) APPLICANT BY: SHRI R.C. JAIN, A.R RESPONDENT BY: SHRI NISHANT SAMAIYA , D.R DATE OF HEARING: 08 .03 .2019 DATE OF PRONOUNCEMENT: 2 4 .04.2019 O R D E R PER RAVISH SOOD, JM: THE PRESENT MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE ON 07.09.2016 ARISES FROM THE ORDER PASSED BY THE TRIBUNAL IN THE CASE OF DEEPAK B. JAIN VS. ITO, 25(3)(2), MUMBAI IN ITA NO. 5120/MUM/2011 FOR A.Y. 2006 - 07, DATED 06.11.2012. 2. IT IS SUBMITTED BY THE LD. AUTHORIZED REPRESENTATIVE (FOR SHORT A.R) FOR THE ASSESSEE APPLICANT THAT THE TRIBUNAL HAD DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE , VIDE ITS ORDER DATED 06.11.2012, FOR P A G E | 2 M.A. NO. 301/MUM/2016 A.Y. 2006 - 07 (ARISING OUT OF ITA NO.5120/MUM/2011) DEEPAK JAIN VS. THE INCOME TAX OFFICER - 33(1)(4) THE REASON THAT THE ASSESSEE HAD FAILED TO PUT UP AN APPEARANCE ON THE DATE WHEN THE APPEAL WAS FIXED FOR HEARING. THE LD. A.R SUBMITTED THAT THE FAILURE ON THE PART OF THE ASSESSEE TO PUT UP AN APPEARANCE AT THE TIME OF HEARING OF APPEAL WAS ON ACCOUNT OF AN INADVERTENT MISTAKE WHICH WAS BACKED BY BONAFIDE REASONS. IT WAS SUBMITTED BY THE LD. A.R THAT INITIALLY THE APPEAL OF THE ASSESSEE WAS FIXED FOR HEA RING ON 24.07.2012, HOWEVER, AS ON THE SAID DATE THE BENCH WAS NOT FUNCTIONING, THEREFO RE, THE ASSESSEE DID NOT ENGAGE ANY CHARTERED ACCOUNTANT TO REPRESENT HIS CASE. IT WAS FURTHER SUBMITTED BY HIM THAT THE ASSESSEE BEING A LAYMAN FAILED TO INQUIRE FROM T HE REGISTRY ABOUT THE NEXT DATE OF HEARING OF THE APPEAL, WHICH AS A MATTER OF FACT WAS FIXED FOR 06.11.2012 . IT WAS SUBMITTED BY THE LD. A.R THAT BECAUSE OF THE AFORESAID BONAFIDE MISTAKE ON THE PART OF THE ASSESSEE HIS APPEAL WAS DISPOSED OFF BY THE TRIBUNAL VIDE AN EX - PARTE ORDER, DATED 06.11.2012 . IN THE BACKDROP OF THE AFORESAID FACTS, IT WAS SUBMITTED BY TH E LD. A.R. THAT AS THE FAILURE ON THE PART OF THE ASSESSEE TO APPEAR AT THE TIME OF HEARING OF THE APPEAL WAS ON ACCOUNT OF BONAFIDE REASONS, THEREFORE, THE MATTER IN ALL FAIRNESS MAY BE RECALLED BY THE TRIBUNAL IN EXERCISE OF THE POWERS VESTE D WITH IT UND ER RULE 24 OF THE A PPELLATE TRIBUNAL RULES, 1963. 3. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE (FOR SHORT D.R) OBJECTED TO THE RECALLING OF THE ORDER AS WAS SOUGHT BY THE COUNSEL FOR THE ASSESSEE. 4. WE HAVE HEARD THE AUTHORIZED REPRE SENTATIVES FO R BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, THE ASSESSEE DESPITE HAVING BEEN PUT TO NOTICE AS REGARDS THE DATE OF HEARING OF THE APPEAL HAD FAILED TO PUT UP AN APPEARANCE ON THE SPECIFIED DATE OF HEARING, AS A RESULT WHEREO F HIS APPEAL WAS DISMISSED BY THE TRIBUNAL. WE HAVE DELIBERATED AT LENGTH ON THE REASONS LEADING P A G E | 3 M.A. NO. 301/MUM/2016 A.Y. 2006 - 07 (ARISING OUT OF ITA NO.5120/MUM/2011) DEEPAK JAIN VS. THE INCOME TAX OFFICER - 33(1)(4) TO THE FAILURE ON THE PART OF THE ASSESSEE TO PROSECUTE HIS APPEAL BEFORE THE TRIBUNAL AND FIND SUBSTANTIAL FORCE IN THE SAME. AS THE ASSESSEE HAD ON ACCOUNT O F SHEER IGNORANCE ON HIS PART INADVERTENTLY ERRED IN INQUIRING FROM THE REGISTRY ABOUT THE NEXT DATE OF HEAR ING OF THE APPEAL, THEREFORE , FOR THE SAID REASON THE SAME WAS DISMISSED IN LIMINE. WE THO UGH ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE OUGHT TO HAVE BEEN VIGILANT AS REGARDS THE APPEAL FILE D BY HIM WITH THE TRIBUNAL, HOWEVER, IN THE BACKDROP OF THE FACTS LEADING TO THE FAILURE ON HIS PART TO PUT UP AN APPEARANCE AND/OR ENGAGE A COUNSEL TO REPRESENT HIM BEFORE THE TRIBUNAL, WE ARE OF THE CONSIDERED VIEW THAT THE APPLICATION FILED BY THE ASSESSEE SEEKING RECALLING OF THE MATTER MERIT S ACCEPTANCE. 5. IN TERMS OF OUR AFORESAID OBSERVATIONS , WE SET ASIDE THE EX - PARTE ORDER, DATED 06.11.2 012 OF THE TRIBUNAL AND RESTORE THE APPEAL. THE REGISTRY IS DIRECTED TO FIX THE APPEAL FOR HEARING ON 13.05.2019. AS THE DATE OF HEARING OF THE APPEAL WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF BOTH THE PARTIES, THEREFORE, THE REQUIREMENT OF INTIMATING THE S AME BY WAY OF A SEPA RATE NOTICE IS BEING DISPENSED WITH. 6. THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED IN TERMS OF OUR AFORESAID OBSERVATIONS. ORDER PRO NOUNCED IN THE OPEN COURT ON 2 4 .04 .2019 S D / - S D / - ( SHAMIM YAHYA) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 24 .04.2019 PS. ROHIT P A G E | 4 M.A. NO. 301/MUM/2016 A.Y. 2006 - 07 (ARISING OUT OF ITA NO.5120/MUM/2011) DEEPAK JAIN VS. THE INCOME TAX OFFICER - 33(1)(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 . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI