AAREY DRUGS AND PHARMACEUTICALS LIMITED , MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 13, MUMBAI

MA 335/MUM/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0361 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 07-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJEEV GUBGOTRA
• Section: 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI G.S. PANNU, VICE PRESIDENT, AND SHR I SAKTIJIT DEY, JUDICIAL MEMBER M.A NO.335/MUM./2018 ( ARISING OUT OF ITA NO .6815 / MUM . / 201 4 ) ( ASSESSMENT YEAR : 2011 12 ) AAREY DRUGS & PHARMACEUTICALS LTD. 107, SAHAKAR BHAVAN 340/48, NARSI NATHA STREET MUMBAI 400 009 PAN AAACA5253A . APPELLANT V/S ASSTT. COMMISSIONER OF INCOME TAX CIRCLE 13, MUMBAI . RESPONDENT ASSESSEE BY : SHRI DHARMIL JHAVERI REVENUE BY : SHRI RAJEEV GUBGOTRA DATE OF HEARING 30.08.2019 DATE OF ORDER 05.09.2019 O R D E R PER SAKTIJIT DEY, J.M. BY THIS APPLICATION, THE ASSESSEE SEEKS RECALL OF ORDER DATED 3 RD NOVEMBER 2017, PASSED IN ITA NO.6815/MUM./2014. 2 . E XPLAINING THE REASON FOR NON APPEARANCE ON THE DATE OF HEARING OF APPEAL FOR WHICH THE APPEAL WAS DISPOSED OFF EX PARTE , T HE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , THE ASSESSEE COULD NOT APPEAR 2 AAREY DRUGS & PHARMACEUTICALS LTD. ON THE DATE OF HEARING AS THE NOTICE OF HEARING WAS NOT RECEIVED BY THE ASSESSEE DUE TO CHANGE OF ITS ADDRESS. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , THOUGH , THE ASSESSEE HAD INTIMATED THE FACT RELATING TO CHANGE OF ADDRESS TO ITS AUTHORISED REPRESENTATIVE, BUT INADVERTENTLY THE FACT OF CHANGE OF ADDRESS WAS NOT BROUGHT TO TH E NOTICE OF THE TRIBUNAL WHICH RESULTED IN DISPOSAL OF THE APPEAL EX PARTE. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , SINCE THE NON APPEARANCE ON THE DATE OF HEARING IS DUE TO BONA FIDE REASON, THE EX PARTE ORDER PASSED BY THE TRIBUNAL SHOULD BE RECA LLED AND THE APPEAL BE HEARD ON MERIT AFTER HEARING THE ASSESSEE. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , DUE TO EX PARTE DISPOSAL OF APPEAL, VARIOUS ARGUMENTS ON MERIT COULD NOT BE MADE RESULTING IN CONFIRMATION OF ADDITIONS MADE BY THE DEPARTMENTAL AUTHORITIES . THUS, HE SUBMITTED , IN THE INTEREST OF JUSTICE A FAIR CHANCE BE GIVEN TO THE ASSESSEE TO REPRESENT ITS CASE ON MERIT. 3 . THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED , THE ASSESSEE IS A CHRONIC DEFAULTER, AS HE HAS NOT ONLY FAILED TO APPEAR BEFORE THE TRIBUNAL, BUT HAD A LSO FAILED TO APPEAR BEFORE LEARNED COMMISSIONER (APPEALS), AS A RESULT OF WHICH , THE APPEAL WAS DISPOSED OF F EX PARTE. HE SUBMITTED , THE AFORESAID FACTS SHOW THE CASUAL APPR OACH OF THE ASSE SSEE WHICH CANNOT BE CONDONED. HE SUBMITTED , IN 3 AAREY DRUGS & PHARMACEUTICALS LTD. CASE THE TRIBUNAL DECIDES TO RECALL THE EX PARTE ORDER, IT SHOULD BE RESTORED ON IMPOSITION OF COST ON THE ASSESSEE. 4 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD. WE AGREE WITH THE LEA RNED DEPARTMENTAL REPRESENTATIVE THAT THE ASSESSEE HAS NOT ACTED IN A RESPONSIBLE MANNER WITH REGARD TO THE TA X PROCEEDINGS EITHER BEFORE LEARNED COMMISSIONER (APPEALS) OR BEFORE THE TRIBUNAL. IF THERE WAS ANY CHANGE IN ADDRESS OF THE ASSESSEE, IT SHOULD H AVE BEEN PROMPTLY INTIMATED TO THE REGISTRY FOR MAKING N ECESSARY CHANGES WHICH COULD HAVE PREVENTED EX PARTE DISPOSAL OF THE APPEAL AND UNNECESSARY EXERCISE OF DEALING WI TH THE SAME APPEAL TWICE RESULTING IN WASTAGE OF VALUABLE TIME . HOWEVER, CONSIDERING T HE SUBMISSIONS OF THE LEARNED AUTHORISED REPRESENTATIVE THAT DUE TO INADVERTENCE THE CHANGE OF ADDRESS COULD NOT BE INTIMATED TO THE TRIBUNAL AND FURTHER , THE ASSESSEE HAS A STRONG CASE ON MERIT, TAKING A LENIENT VIEW WE ARE INCLINED TO RECALL OUR ORDER DA TED 3 RD NOVEMBER 2017 AND RESTORE THE APPEAL TO ITS ORIGINAL POSITION . HOWEVER, SUCH RECALL IS SUBJECT TO PAYMENT OF COST OF ` 5,000, TO BE DEPOSITED BY THE ASSESSEE IN THE PRIME MINISTERS RELIEF FUND BEFORE THE NEXT DATE OF HEARING OF APPEAL , WHICH IS FIXED ON 14 TH OCTOBER 2019. THE ASSESSEE SHOULD ALSO FURNISH EVIDENCE OF MAKING SUCH PAYMENT BEFORE THE REGISTRY. SINCE , THE NEXT DATE OF HEARING OF APPEAL 4 AAREY DRUGS & PHARMACEUTICALS LTD. IS P RONOUNCED IN THIS ORDER, ISSUANCE OF SEPARATE HEARING NOTICES TO THE PARTIES ARE HEREB Y DISPENSED WITH. 5 . IN THE RESULT, MISC. APPLICATION IS ALLOWED IN THE TERMS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN C OURT ON 05.09.2019 SD/ - G. S. PANNU ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 06.09.2019 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