ANIL JAGANNATH TIWARI PROPRIETOR M/S. ANIL AND BROTHERS, MUMBAI V. INCOME TAX OFFICER WARD 2(1), KALYAN

MA 336/MUM/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0398 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 08-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AKHTAR HANSARI

Judgement Text

P A G E | 1 M.A. NOS.336 & 337/MUM/2018 (ITA NOS.6492 & 6493/MUM/2017) A.YS. 2010 - 11 & 2011 - 12 THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER M.A. NOS. 336 & 337/MUM/2018 (ARISING OUT OF ITA NOS.6492 & 6493/MUM/2017) (ASSESSMENT YEARS: 2010 - 11 & 2011 - 12 ) ANIL JAGANNATH TIWARI PROP. M/S ANIL & BROTHERS, C/O, KWALITY ENTERPRISES, LAXMI CHS LTD., OPP. MARUTI MANDIR, GANDHI CHOWK, KULGAON, BADLAPUR (EAST), MUM B AI - 421 503 VS. INCOME TAX OFFICER, WARD - 2(1) KALYAN PAN ACGPT4287Q (APPLICANT) (RESPONDENT) APPLICANT BY: SHRI PARESH SHAPARIA , A.R RESPONDENT BY: SHRI AKHTAR H. ANSARI , D.R DATE OF HEARING: 15.11 .2019 DATE OF PRONOUNCEMENT: 2 6 .12.2019 O R D E R PER RAVISH SOOD, JM: THE PRESENT MISCELLANEOUS APPLICATION S FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE CONSOLIDATED ORDER PASSED BY THE TRIBUNAL IN THE CASE OF SHRI ANIL J. TIWARI VS. ITO, WARD - 2(1), KALYAN IN ITA NO.6492 & 6493/MUM/2017, DATED 31.01 .2018 FOR A.Y 2010 - 11 & A.Y. 2011 - 12. 2. IT IS STATED BY THE ASSESSEE APPLICANT THAT THE AFORESAID ORDER PASSED BY THE TRIBUNAL, THEREIN DISPOSING OFF THE CAPTIONED APPEALS, VIDE ITS ORDER DATED 31.01.2018 WAS RECEIVE D ON 19.03.2018. IT IS STATED BY THE AS SESSEE THAT THE APPEALS WERE DISPOSED OFF BY WAY OF AN EX - PARTE ORDER, FOR THE REASON, THAT NO APPEARANCE WAS PUT FORTH ON HIS BEHALF AT THE TIME OF HEARING OF THE APPEAL BEFORE THE TRIBUNAL. P A G E | 2 M.A. NOS.336 & 337/MUM/2018 (ITA NOS.6492 & 6493/MUM/2017) A.YS. 2010 - 11 & 2011 - 12 3. THE LD. AUTHORIZED REPRESENTATIVE (FOR SHORT A.R) FOR THE A SSESSEE APPLICANT SUBMITTED , THAT THE FAILURE ON THE PART OF THE ASSESSEE TO PUT UP AN APPEARANCE AT THE TIME OF HEARING OF THE APPEAL WHICH WAS FIXED FOR 30.01.2018 HAD OCCASIONED, FOR THE REASON, THAT NO SUCH NOTICE INTIMATING THE AFORESAID DATE OF HEARING OF THE APPEAL WAS RECEIVE D BY THE ASSESSEE. IT WAS SUBMITTED BY THE LD. A.R , THAT THE ASSESSEE VIDE HIS LETTER DATED 21.03.2018 HAD REQUESTED THE REGISTRAR OF THE ITAT FOR A COPY OF THE NOTICE OF HEARING WHICH WAS STATED TO HAVE BEEN SENT TO THE ASSESSEE BY REGISTERED POST ACKNOWL EDGMENT DUE (RPAD ). IT WAS CLAIMED BY THE LD. A.R, THAT THOUGH AS PER THE ITAT POSTAL REGISTRAR IT WAS CLAIMED THAT A NOTICE INTIMATING THE FIXATION OF THE APPEAL WAS SENT TO THE ASSESSEE BY POST ON 04.01.2018, HOWEVER, NO SUCH NOTICE WAS RECEIVED BY THE A SSESSEE . ON 12.04.2018, IT WAS STATED BY THE LD. A.R THAT THE ASSESSEE HAD ONCE AGAIN REQUESTED FOR THE INSPECTION OF THE FILES IN ORDER TO OBTAIN A COPY OF THE NOTICE ALONG WITH THE PROOF THAT THE SAME WAS SERVED UPON HIM. IT WAS SUBMITTED BY THE LD. A.R, THAT ON 02.05.2018 THE COUNSEL FOR THE ASSESSEE HAD CARRIED OUT THE INSPECTION OF THE ITAT FILES , BUT NEITHER THE RPAD NOTICE OR ANY PROOF EVIDENCING THE SERVICE OF THE SAID NOTICE WAS AVAILABLE ON RECORD. IT WAS SUBMITTED BY THE LD. A.R , THAT AS THE ASSE SSEE HAD NOT RECEIVED ANY NOTICE OF HEARING OF THE APPEAL ON 30.01.2018, THEREFORE, FOR THE SAID REASON IT HAD FAILED TO PUT UP AN APPEARANCE BEFORE THE TRIBUNAL ON THE SAID DATE. ON THE BASIS OF HIS AFORESAID CONTENTIONS, IT WAS AVERRED BY THE LD. A.R THA T THE ORDERS PASSED BY THE TRIBUNAL DISPOSING OFF THE CAPTIONED APPEALS FOR A.Y. 2010 - 11 & A.Y. 2011 - 12 MAY BE RECALLED. 4. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE (FOR SHORT D.R) DID NOT CONTROVERT THE AFORESAID FACTS AS WERE AVERRED BY THE COU NSEL FOR THE ASSESSEE. 5. WE HAVE HEARD THE AUTHORIZED REPRE SENTATIVES FOR BOTH THE PARTIES AND PERUSED THE RECORDS. AS IS DISCERNIBLE FROM THE RECORDS THE CHRONOLOGY OF THE EVENTS LEADING TO THE DISPOSAL OF THE CAPTIONED APPEAL ARE AS UNDER : DATE PARTICULARS 06.11.2017 APPEAL S FILED BY THE ASSESSEE WITH THE TRIBUNAL 15.12.2017 THE HEARING OF THE APPEAL WAS FIXED FOR 30.01.201 8 30.01.2018 AS THE ASSESSEE APPELLANT HAD FAILED TO ATTEND THE APPELLATE PROCEEDINGS, THEREFORE, THE APPEALS WAS HEARD ON AN EX - PARTE BASIS BY THE TRIBUNAL. 31.01.2018 ORDER PASSED BY THE TRIBUNAL UNDER SEC. 254(1) OF THE ACT, DISPOSING OFF THE APPEAL S . P A G E | 3 M.A. NOS.336 & 337/MUM/2018 (ITA NOS.6492 & 6493/MUM/2017) A.YS. 2010 - 11 & 2011 - 12 6. ON A PERUSAL OF THE RECORDS , WE FIND SUBSTANTIAL FORCE IN THE CLAIM OF THE ASSESSEE APPLICANT THAT THE NOTICE INTIMATING THE FIXATION OF THE APPEAL S ON 30.01.2018 HAD NOT BEEN SERVED UPON THE ASSESSEE. AS SUCH, FOR THE AFORESAID REASON, THE ASSESSEE APPELLANT HAD FAILED TO PUT UP AN APP EARANCE ON THE DATE OF THE HEARING OF THE APPEAL S I.E ON 30.01.2018, PURSUANT WHERETO T HE SAME WERE DISPOSED OFF BY THE TRIBUNAL BY WAY OF A CONSOLIDATED EX - PARTE ORDER DATED 31.01.2018. IN OUR CONSIDERED VIEW, AS THE ASSESSEE HAD REMAINED DIVESTED OF ANY OPPORTUNITY TO PUT UP AN APPEARANCE IN THE COURSE OF THE HEARING OF THE APPEAL S , THEREFORE, IN ALL FAIRNESS THE AFORE SAID RESPECTIVE APPEALS REQUIRES TO BE RESTORED. ACCORDINGLY, WE RECALL OUR AFORESAID ORDER AND DIRECT THE REGISTRY TO RE - FIX THE AFORESAID APPEALS VIZ. ITA NO. 6 492/MUM/2017 FOR A.Y. 2010 - 11 AND ITA NO. 6493/MUM/2017 FOR A.Y. 2011 - 12 ON 26.02 .2020. THE PARTIES BE INTIMATED ABOUT THE FIXATION OF THE APPEAL S ON THE AFORESAID DATE . 7. THE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE ARE ALLOWED IN TERMS OF OUR AFORESAID OBSERVATIONS. ORDER PRO NOUNCED IN THE OPEN COURT ON 2 6 . 12.2019 S D / - S D / - (SHAMIM YAHYA) (RAVISH SOOD) ACCOUNTANT MEMB ER JUDICIAL MEMBER MUMBAI ; DATED: 2 6 /12/2019 ROHIT, P.S. 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 . BY ORDER, //TRUE COPY// (SR. PRIVATE SECRETARY) ITAT, MUMBAI P A G E | 4 M.A. NOS.336 & 337/MUM/2018 (ITA NOS.6492 & 6493/MUM/2017) A.YS. 2010 - 11 & 2011 - 12