IMTIAZ SATTAR OOMMERBHOY, MUMBAI V. INCOME TAX OFFICER 10 (1) (4) , MUMBAI

MA 320/MUM/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6549 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2011-2012
• Appeal Filed On: 27-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D G
• Assessee Lawyers: DINESH ACHARYA

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES H, MUMBAI , BEFORE SHRI JOGINDER SINGH, VICE PRESIDENT, AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER MA NO.320/MUM/2018 (ARISING OUT OF ITA NO.3253/MUM/2016) ASSESSMENT YEAR: 2011-12 IMTIAZ SATTAR OOMERBHOY , D.S. ACHARYA & CO. CHARTERED ACCOUNTANTS, 513, ARUN CHAMBERS, 5 TH FLOOR, TARDEO ROAD, MUMBAI-400034 / VS. INCOME TA X OFFICER - 010(1)(4), 4 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020 ( !'#$% /ASSESSEE) ( & / REVENUE) PAN. NO. AAAPO 0571C ' &( ) * / DATE OF HEARING : 11/01/2019 ) * / DATE OF ORDER: 11/01/2019 !'#$% ! / ASSESSEE BY SHRI DINESH ACHARYA & ! / REVENUE BY SHRI D. G. PANSARI - DR MA NO.320/MUM/2018 (ARISING OUT OF ITA NO.3253/MUM/2016) IMTIAZ SATTAR OOMMERBHOY 2 / O R D E R PER JOGINDER SINGH (VICE PRESIDENT) THIS MISCELLANEOUS APPLICATION IS BY THE ASSESSEE SEEKING RECALLING OF AN ORDER DATED 03/10/2017, WHE RE, THE APPEAL OF THE ASSESSEE WAS DISMISSED AS WITHDRAWN. 2. DURING HEARING OF THIS MISCELLANEOUS APPLICATIO N, THE ASSESSEE FILED AFFIDAVIT STATING THAT DURING TH E HEARING ON 28/09/2017, THE MOTHER OF THE ASSESSEE WAS SERIOUSL Y ILL AND ADMITTED IN THE BREACH CANDY HOSPITAL. IT HAS BEEN STATED IN THE AFFIDAVIT THAT THE OLD AGE MOTHER WAS TOTALLY D EPENDENT UPON THE ASSESSEE AND DUE TO SERIOUS MISCOMMUNICATI ON BETWEEN THE CHARTERED ACCOUNTANT AND THE ADVOCATE O F THE ASSESSEE, AN APPLICATION WAS FILED FOR PERMISSION T O WITHDRAW THE APPEAL OF THE ASSESSEE. DURING HEARING, THE BEN CH OBSERVED THAT THE CERTIFICATE OF THE CHARTERED ACCO UNTANT IS ALSO REQUIRED TO FORTIFY THE CLAIM OF THE ASSESSEE. TODAY, I.E. ON 11/01/2019, SHRI DINESH ACHARYA, LD. CHARTERED ACCOUNTANT FOR THE ASSESSEE, PERSONALLY APPEARED AN D FILED AN AFFIDAVIT STATING THAT THE MEDICAL CONDITION OF THE MOTHER OF THE ASSESSEE WAS NOT GOOD AND SHE WAS HOSPITALIZ ED AND MA NO.320/MUM/2018 (ARISING OUT OF ITA NO.3253/MUM/2016) IMTIAZ SATTAR OOMMERBHOY 3 DUE TO MIS-COMMUNICATION BETWEEN THE ADVOCATE AND DEPONENT (SHRI DINESH ACHARYA), AN APPLICATION WAS FILED TO WITHDRAW THE APPEAL OF THE ASSESSEE. IT WAS PLEADED THAT THE ASSESSEE SHOULD NOT SUFFER DUE TO THE MISCOMMUNICAT ION OF THE REPRESENTATIVE OF THE ASSESSEE. ON THE OTHER HA ND, THE LD. DR, CONTENDED THAT THE ORDER OF THE TRIBUNAL MAY NO T BE RECALLED. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS NOT ED THAT THE TRIBUNAL VIDE ORDER DATED 03/10/2017, DISMISSED THE APPEAL OF THE ASSESSEE AS WITHDRAWN. THE ASSESSEE THROUGH THIS MISCELLANEOUS APPLICATION FILED UNDER SECTION 254(2 ) STATED THAT THERE WAS A MISCOMMUNICATION BETWEEN THE CHART ED ACCOUNTANT AND ADVOCATE OF THE ASSESSEE ON THE BASI S OF WHICH AN APPLICATION WAS FILED TO WITHDRAW THE APPE AL OF THE ASSESSEE. THE ASSESSEE AS WELL AS THE CHARTERED ACC OUNTANT OF THE ASSESSEE HAS FILED AFFIDAVITS IN SUPPORT OF THEIR CONTENTION, WHICH ARE SELF SPEAKING, THEREFORE, THE CONTENTS OF THE SAME ARE NOT BEING REPEATED BEING MATTER OF REC ORD. THUS, WITHOUT GOING INTO MUCH DELIBERATION AND SINC E THE OLD MA NO.320/MUM/2018 (ARISING OUT OF ITA NO.3253/MUM/2016) IMTIAZ SATTAR OOMMERBHOY 4 AGED MOTHER OF THE ASSESSEE WAS HOSPITALIZED AND TH ERE WAS MISCOMMUNICATION BETWEEN THE REPRESENTATIVE OF THE ASSESSEE, WE ARE OF THE VIEW THAT THE ASSESSEE SHOU LD NOT SUFFER FOR SUCH MISCOMMUNICATION. THUS, WE DEEM IT APPROPRIATE TO RECALL THE ORDER OF THE TRIBUNAL DAT ED 03/10/2017 AND DIRECT THE REGISTRY TO FIX THE APPEA L OF THE ASSESSEE FOR FRESH HEARING FOR 25/02/2019. SINCE, T HE DATE WAS PRONOUNCED IN THE OPEN COURT AND DULY NOTED BY THE LD. COUNSEL FOR THE ASSESSEE, NO SEPARATE NOTICE OF HEA RING WILL BE ISSUED BY THE REGISTRY OF THIS TRIBUNAL. FINALLY, THE MISCELLANEOUS APPLICATION OF THE ASSES SEE IS ALLOWED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE LD. REPRESENTATIVE FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 11/01/2019 SD/- SD/- (RAMIT KOCHAR) (JOGINDER SINGH) '!# / ACCOUNTANT MEMBER /VICE PRESIDENT ( MUMBAI; , ' DATED : 11/01/2019 F{X~{T? P.S/. !'.. MA NO.320/MUM/2018 (ARISING OUT OF ITA NO.3253/MUM/2016) IMTIAZ SATTAR OOMMERBHOY 5 $%&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ./0 / THE APPELLANT 2. 12/0 / THE RESPONDENT. 3. 4(.5 / THE CIT, MUMBAI. 4. 4 / CIT(A)- , MUMBAI 5. 6&7 1!!'# .* .# 8 ( / DR, ITAT, MUMBAI 6. 9$ :( / GUARD FILE. ! / BY ORDER, /! (DY./ASSTT. REGISTRAR) ( / ITAT, MUMBAI