VARIETY INVESTMENTS P.LTD, V. ASST CIT CIR 4(3),

MA 358/MUM/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1272 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2004-2005
• Appeal Filed On: 04-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PRADIP N KAPASI
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH MUMBAI BEFORE SHRI P.M.JAGTAP , A M & SHRI AMIT SHUKLA , J M MA NO. 3 58 /MUM/20 1 3 (ARISING OUT OF ITA NO.80 2 1/M/2011) ( ASSESSMENT YEAR : 2004 - 05 ) M/S VARIETY INVESTMENTS PVT. LTD., C/O M/S LAW CHARTER, 14 - K , HAMAM STREET, FORT, MUMBAI - 400 001 VS. ACIT, 4(3), MUMBAI - 20 PAN NO. : A A AC V 3458 Q ( APP LICANT ) .. ( RESPONDENT ) ASSESSEE BY : MR PRADIP N KAPASI REVENUE BY : MS NEERAJA PRADHAN DATE OF HEARING : 6 TH DECEMBER , 2013 DATE OF PRONOUNCEMENT : 6 TH DECEMBER , 2013 O R D E R PER AMIT SHUKLA , J M : TH IS MISCELLANEOUS APPLICATION HA S BEEN PREFERRED BY THE ASSESSEE IN RELATION TO ORDER DATED 31 - 1 - 2013, PASSED IN ITA NO. 8021/M/2011. 2 . SHRI PRADIP N. KAPASI, LEARNED COUNSEL ON BEHALF OF THE ASSESSEE , SUBMITTED THAT THE AFORESAID APPEAL FOR A.Y. 2004 - 05 WAS FIXED FOR HEARING ON 17 - 1 - 2013 AND THE APPEAL FOR A.Y.2005 - 06 WAS SCHEDULED FOR HEARING ON 5 - 3 - 2013. THE ASSESSEE HAD ENGAGED HIM (SHRI PRADIP N. KAPASI) AS HIS COUNSEL TO AR GUE THE MATTER. AS PER HIS ADVICE, BOTH THE APPEALS OF THE ASSESSEE WERE TO BE CLUBBED TOGETHER AS THE ISSUE S INVOLVED WERE COMMON , SO THAT THEY CAN BE DISPOSED OF AT THE SAME TIME. UNDER HIS ADVICE, A LETTER DATED 10 - 1 - 2013 , WAS FILED REQUESTING FOR ADJOU RNMENT OF THE HEARING OF THE APPEAL FOR A.Y.2004 - 05 AND ALSO CONSOLIDATION OF BOTH THE YEARS APPEALS OF THE ASSESSEE TO M.AN . 3 58 / 201 3 2 BE HEARD ON 5 - 3 - 2013. ON THE DATE OF HEARING, SHRI WAQUAR AHMED, WHO WAS ONE OF THE ARTICLE CLERK IN THE OFFICE OF SHRI PRADIP N. KAPAS I, HAD APPEARED AND REQUESTED FOR ADJOURNMENT AND CONSOLIDATION OF THE APPEALS. THE TRIBUNAL REJECTED THE SAID APPLICATION AND HAS TAKEN NOTE OF THE FACT THAT NO ARGUMENT HAS BEEN PUT FORTH BY THE COUNSEL. SINCE HE WAS A JUNIOR ARTICLE, HAD NOT PREPARED TH E BRIEF AND WAS NOT AUTHORIZED TO ARGUE THE CASE, THEREFORE, HE COULD NOT HAVE MADE ANY SUBMISSION S . THE TRIBUNAL HAS PROCEEDED TO DECIDE THE ISSUE AGAINST THE ASSESSEE AFTER FOLLOWING THE DECISION OF HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS . BHARAT R. RUIA (HU F) IN ITA NO.1539 OF 2011, ORDER DATED 18 - 4 - 2011. HE SUBMITTED THAT THERE IS A DISTINGUISHING FEATURE IN THE CASE OF THE ASSESSEE, WHICH REMAINS TO BE ARGUED BEFORE THE TRIBUNAL. TH US , ASSESSEE HAD BEEN PRECLUDED FROM PUTTING FORTH THE PROPER ARGUMENTS AND FACTS BEFORE THE TRIBUNAL. THEREFORE, IN THE INTEREST OF JUSTICE, THE ORDER SHOULD BE RECALLED SO THAT OPPORTUNITY CAN BE GIVEN TO THE ASSESSEE FOR PRESENTING ITS CASE. 3. ON THE OTHER HAND, LEARNED DR OBJECTED TO RECALL OF THE SAID ORDER ON THE GROUND THAT THE TRIBUNAL HAS DECIDED THE ISSUE ON MERITS AFTER DETAILED DISCUSSIONS , THEREFORE, THERE IS NO SCOPE OF RECALLING U/S.254(2) OF THE ACT . 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PERUSED THE MATERIAL PLACED ON RECORD. THE A SSESSEE , ON THE DATE OF HEARING HAS SUBMITTED A LETTER FOR SEEKING ADJOURNMENT ON THE GROUND THAT THE M.AN . 3 58 / 201 3 3 ASSESSEES APPEALS FOR THE SUBSEQUENT ASSESSMENT YEAR I.E. 2005 - 06 IS FIXED FOR HEARING ON 5 - 3 - 2013, THEREFORE, THE PRESENT APPEAL MA Y ALSO BE CLUBBED TOG ETHER AND BE HEARD ON THE SAME DATE. HOWEVER, THE TRIBUNAL HAS REJECTED SUCH APPLICATION ON THE GROUND THAT THE APPEAL FOR THE AY 2004 - 05 CAN BE HEARD INDEPENDENTLY WITHOUT CLUBBING WITH THE APPEAL FOR SUBSEQUENT YEA AND, THEREFORE, THE ASSESEES REQUEST W AS REJECTED. THE TRIBUNAL BASED ON THE ISSUES INVOLVED ARISING OUT OF THE ORDER OF THE CIT(A), HAS DECIDED THE ISSUE AFTER FOLLOWING THE DECISION OF THE HON BLE JURISDICTION HIGH COURT IN THE CASE OF BHARAT R. RUIA (HUF) (SUPRA) . LEARNED COUNSEL H AS SUBMI TTED BEFORE US THAT SHRI WAQUAR AHMED WAS A TRAINEE ADVOCATE AND COULD NOT HAVE REPRESENTED THE CASE OF ASSESSEE TO ARGUE THE MATTER. HE HAS SIMPLY COME TO SEEK ADJOURNMENT ONLY. UNDER THESE FACTS AND CIRCUMSTANCE OF THE CASE, WE FEEL THAT PROPER OPPORTUNI TY OF HEARING HAS BEEN DENIED TO THE ASSESSEE FOR PRESENTING ITS CASE . RULE OF AUDI ALTER A M PARTEM IS THE STRONG FOUNDATION FOR RENDERING JUSTICE AND, THEREFORE, I N THE INTEREST OF NATURAL JUSTICE, WE ARE OF THE OPINION THAT THE MATTER SHOULD BE RECALLED F OR FRESH HEARING , SO THAT PROPER OPPORTUNITY OF HEARING CAN BE GIVEN TO THE ASSESSEE TO PRESENT ITS CASE AND THE MATTER CAN BE DE C I DED AFTER HEARING BOTH THE PARTIES AND IN ACCORDANCE WITH THE PROVISIONS OF LAW. ACCORDINGLY, WE ALLOW THE MISCELLANEOUS APPL ICATION OF THE ASSESSEE AND RECALL THE ORDER DATED 31 - 1 - 2013 IN ENTIRETY , FOR FRESH HEARING . THE REGISTRY IS DIRECTED TO FIX THE DATE OF HEARING IN DUE COURSE. M.AN . 3 58 / 201 3 4 5 . RESULTANTLY , MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 6 TH D AY OF DEC . , 201 3 . SD/ - SD/ - ( P.M. JAGTAP ) ( AMIT SHUKLA ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED : 06/12 /2013 . /PKM , PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLAN T 2. THE RESPONDENT. 3. THE CIT(A) - X, MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI