ZEE TELEFILMS LTD, V. ASST CUT CUR 11(1),

MA 340/MUM/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7000 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2004-2005
• Appeal Filed On: 16-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAHUL K HAKANI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES G , MUMBAI BEFORE SHRI. P.M. JAGTAP (A.M.) AND SHRI. N.V. VASU DEVAN (J.M.) M.A. NO.340/MUM/2011 (ARISING OUT OF ITA NO.298/MUM/2009) ASSESSMENT YEAR : 2004-2005 M/S. ZEE TELEFILMS LTD., (NOW ZEE ENTERTAINMENT ENTERPRISES LTD.) CONTINENTAL BUILDING, 135, DR. A.B. ROAD, WORLI, MUMBAI 400 018. PAN : AAACZ0243R VS. THE A.C.I.T. CIR.-11(1) MUMBAI. (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI RAHUL K. HAKANI RESPONDENT BY : SHRI PAWAN VED, CIT DR. O R D E R PEP P.M. JAGTAP, A.M. BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE IS SEEKING RECALL OF THE TRIBUNAL ORDER DATED 23.02.2011 PASSED EX-PARTE IN ITA NO.298/MUM/2009 ON THE GROUND THAT THE DATE OF HEARING ADJOURNED BY THE BENCH ON 16.12.2010 AS UNDERSTOOD AND NOTED BY ITS REPRESENT ATIVE WAS 13.02.2011 INSTEAD OF 10.02.2011. ACCORDING TO THE ASSSESEE, THIS MISTAKE IN NOTING THE DATE OF HEARING RESULTED IN ITS NON APPEARANCE ON THE DATE OF HEARING FIXED ON 10.02.2011. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDE AND ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. IN SUPPORT OF ITS APP LICATION, THE ASSESSEE COMPANY HAS FILED AN AFFIDAVIT OF ITS REPRESENTATIV E MR. RAJESH CHAMARIA ACCEPTING THEREIN THE MISTAKE COMMITTED BY HIM IN N OTING THE DATE OF HEARING. IN THE SAID AFFIDAVIT, MR. RAJESH CHAMAR IA HAS AFFIRMED ON OATH THAT HE WAS UNDER THE BONAFIED BELIEF THAT HEARING WAS ADJOURNED TO 13.02.2011 AND ACCORDINGLY HE INFORMED THE SAID DAT E TO THE AUTHORISED M.A. NO.340/MUM/2011 2 REPRESENTATIVE OF THE ASSESSEE. THE LD CIT DR SHRI . PAVAN VED HAS CONTENDED THAT THE SAID AFFIDAVIT FILED BY THE ASSE SSEE IS NOT PROPERLY VERIFIED BY THE DEPONENT AND THE SAME THEREFORE CANNOT BE AD MITTED IN EVIDENCE. IN SUPPORT OF THIS CONTENTION, HE HAS RELIED ON THE DE CISION OF THE HONBLE SUPREME COURT IN THE CASE OF A.K.K. NAMBIYAR VS. UN ION OF INDIA AIR 1970 SC 652. HE HAS ALSO CONTENDED THAT AVERMENTS MAD E IN THE SAID AFFIDAVIT ARE REQUIRED TO THE CROSS EXAMINED. WE ARE ENABLE TO ACCEPT THESE CONTENTIONS OF THE LD DR. AS PER RULE 24 OF APPEL LATE TRIBUNAL RULE, 1963, THE TRIBUNAL CAN DISPOSE OF THE APPEAL OF THE APPEL LATE EX-PARTE IF HE DOES NOT APPEAR IN PERSON OR THROUGH AN AUTHORISED REPRE SENTATIVE WHEN THE APPEAL IS CALLED ON FOR HEARING. HOWEVER, AS PER P ROVISO TO THE SAID RULE, THE TRIBUNAL SHALL MAKE A ORDER SETTING ASIDE EX-PARTE ORDER AND RESTORING THE APPEAL IF THE APPELLANT APPEARS AFTERWARD AND SATIS FIES THE TRIBUNAL THAT THERE WAS SUFFICIENT CAUSE FOR HIS NON APPEARANCE WHEN THE APPEAL WAS CALLED ON FOR HEARING. IT IS WELL SETTLED THAT T HE EXPRESSION SUFFICIENT CAUSE HAS TO BE CONSTRUED QUITE LIBERALLY AND AS H ELD BY THE HONBLE SUPREME COURT IN THE CASE OF COLLECTOR, LAND ACQUIS ITION VS MST. KATIJI (1987) 167 ITR 471, THE SAID EXPRESSION EMPLOYED BY THE LEGISLATURE IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY TH E LAW IN A MEANINGFUL MANNER WHICH SUBSERVES THE ENDS OF JUSTICE. KEEP ING IN VIEW THIS LEGAL POSITION AND HAVING REGARD TO THE FACTS OF THE CASE , WE ARE SATISFIED THAT THE REASON ADVANCED BY THE ASSESSEE FOR HIS NON APPEARA NCE ON THE DATE OF HEARING FIXED ON 10.02.2011 CONSTITUTES SUFFICIENT CAUSE AND ACCORDINGLY KEEPING IN VIEW THE PROVISO TO RULE 24 OF APPELLATE TRIBUNAL RULE 1963, WE RECALL THE EX-PARTE ORDER DATED 23.02.2011 AND REST ORE THE APPEAL OF THE ASESSEE TO ITS ORIGINAL NUMBER. THE REGISTRY IS D IRECTED TO POST THE SAID APPEAL FOR HEARING ON 11.10.2011 AS ANNOUNCED IN TH E OPEN COURT AND TAKE NOTE OF BY THE REPRESENTATIVES OF BOTH THE SIDES. M.A. NO.340/MUM/2011 3 3. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THIS DAY OF 5 TH AUGUST, 2011. SD/- (N.V. VASUDEVAN) JUDICIAL MEMBER SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER MUMBAI, DATED 05.08.2011 JANHAVI COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)-, MUMBAI 4. COMMISSIONER OF INCOME TAX, CITY-, MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH A, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI