SHAMROCK INTERNATIONAL LTD, V. ITO 3(3)(2),

MA 358/MUM/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2547 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-11-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2001-2002
• Appeal Filed On: 06-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R N DSOUZA
• Assessee Lawyers: BHARAT L GANDHI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUM BAI , , BEFORE SHRI SANJAY ARORA, AM AND SHRI AMIT SHUKLA, JM ./MA NO. 358/MUM/2014 (ARISING OUT OF ITA NO. 677/MUM/2005) ( / ASSESSMENT YEARS: 2001-02) SHAMROCK INTERNATIONAL LTD. C/O. B.S. VASA, ADVOCATE, 213/215, JOLLY BHAVAN NO.1, 10, NEW MARINE LINES, MUMBAI-400 020 / VS. INCOME TAX OFFICER, WARD-3(3)(2), MUMBAI # ./% ./PAN/GIR NO. AAACS 5756 L ( APP LIC ANT ) : ( &'#( / RESPONDENT ) APPLICANT BY : SHRI BHARAT L. GANDHI RESPONDENT BY : SHRI R. N. DSOUZA ) * + / DATE OF HEARING : 21.11.2014 ,-. * + / DATE OF PRONOUNCEMENT : 21.11.2014 / O R D E R PER SANJAY ARORA, A. M.: THIS IS A MISCELLANEOUS PETITION BY THE ASSESSEE AR ISING OUT OF THE ORDER BY THE TRIBUNAL IN ITS CASE DATED 30.09.2011, DISMISSING T HE ASSESSEES APPEAL IN LIMINE , I.E., FOR WANT OF PROSECUTION, SO THAT IT WAS NOT MAINTAINABL E FOLLOWING THE DECISION BY THE TRIBUNAL (DELHI BENCH) IN THE CASE OF CIT VS. MULTIPLAN INDIA (P.) LTD ., REPORTED AT 38 ITD 320. 2. THE ASSESSEE HAS NOW, I.E., VIDE ITS APPLICATION DATED 06.08.2014, MOVED THE TRIBUNAL FOR A RECALL OF THE SAID ORDER, STATING TH AT THE NON-ATTENDANCE ON THE DATE OF HEARING OF ITS APPEAL BEFORE THE TRIBUNAL, I.E., 27 .09.2011, WAS FOR THE REASON THAT ITS 2 MA NO. 358/MUM/2014 (A.Y. 2001-02) SHAMROCK INTERNATIONAL LTD. VS. ITO COUNSEL HAD NOT CONVEYED THE SAID DATE TO IT. IT IS WELL SETTLED THAT THE ASSESSEE SHOULD NOT BE PREJUDICED FOR A LAPSE OR OMISSION ON THE PART O F ITS COUNSEL. ACCORDINGLY, IT WAS PRAYED THAT THE IMPUGNED ORDER BE RECALLED FOR A DE CISION AFTER HEARING THE PARTIES. THE LD. DEPARTMENTAL REPRESENTATIVE (DR), ON THE OT HER HAND, WOULD SUBMIT THAT THIS IS THE SECOND INSTANCE WHEN THE ASSESSEES APP EAL HAD BEEN DISMISSED BY THE TRIBUNAL IN SUCH MANNER, I.E., FOR WANT OF PROSECUTION, DRAW ING OUR ATTENTION TO PARA 2 OF THE IMPUGNED ORDER, WHEREAT THE SAID FACT STANDS STATED . EVEN ON AN EARLIER OCCASION ITS APPEAL WAS DISMISSED THUS, AND RECALLED (VIDE ORDER DATED 01.10.2010 IN MA NO.357/MUM/2010), ALLOWING THE ASSESSEE A BENEFIT O F DOUBT. THERE WAS THEREFORE NO SUCH SCOPE FOR ANY FURTHER INDULGENCE IN THE MATTER . 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. WE ARE AT THE OUTSET, EVEN AS CLARIFIED DURING THE COURSE OF HEARING, WHOLLY UNIMPRESSED BY THE ASSESSEES EXPLANATION WHEREBY IT SEEKS TO C AST THE ENTIRE BLAME ON ITS COUNSEL, AT HIS BACK. THERE IS NO AFFIDAVIT BY THE LD. COUNSEL, WHO WOULD, IN ANY CASE, HAVE TO ANSWER AS TO WHY, HE BEING INFORMED OF ALL THE DATE/S, DID HE CHOOSE NOT TO ATTEND THE SAME, PARTICULARLY WHEN THE APPEAL HAD BEEN RECALLED FOR HEARING AFTER HAVING BEEN DISMISSED BY THE TRIBUNAL FOR NON-PROSECUTION EARLIER. WE MAY CL ARIFY THAT NORMALLY THE TRIBUNAL DISMISSES AN APPEAL FOR THIS REASON NOT IN THE FIRS T INSTANCE, BUT ONLY AFTER CONTINUED NON- REPRESENTATION BY THE APPELLANT. THE ASSESSEES CON TENTION IS EVEN OTHERWISE NOT MAINTAINABLE FOR THE REASON THAT IT IS THE COUNSELS , AND NOT THE ASSESSEES, WHO APPEAR BEFORE THE TRIBUNAL, SO THAT ITS CONTENDING THAT T HE DATE OF HEARING HAD NOT BEEN CONVEYED TO HIM WOULD BE OF NO CONSEQUENCE. IT SHOULD HAVE, RATHER, CONSIDERING THE DISMISSAL OF ITS APPEAL ON AN EARLIER OCCASION, TAKEN ALL THE NE CESSARY AND PRECAUTIONARY STEPS TO ENSURE DUE COMPLIANCE OF THE NOTICE OF HEARING/S BEFORE TH E TRIBUNAL. THEN, AGAIN, THE ASSESSEE PRESENTS THIS APPLICATION AFTER A LAPSE OF THREE YE ARS, FOR WHICH AGAIN NO EXPLANATION COULD BE FURNISHED BY THE LD. AR DURING HEARING. THE ASSE SSEES ENTIRE CASE IS A MAKE-BELIEVE. SO HOWEVER, WE OBSERVE THAT THE TRIBUNAL HAS NOT DE CIDED THE ASSESSEES APPEAL ON MERITS, BUT ONLY DISMISSED IT IN LIMINE , SO THAT TO THAT EXTENT THIS MAY HAVE RESULTED IN A 3 MA NO. 358/MUM/2014 (A.Y. 2001-02) SHAMROCK INTERNATIONAL LTD. VS. ITO MISCARRIAGE OF JUSTICE. NO COURT OR TRIBUNAL SHOULD , BY ITS ACTION OR NON-ACTION, CAUSE PREJUDICE TO ANY PARTY BEFORE IT. AS SUCH, THOUGH W E ARE INCLINED TO ADMIT THE ASSESSEES APPLICATION IN THE INTEREST AND CAUSE OF JUSTICE, I .E., FOR DECIDING ITS APPEAL ON MERITS AFTER HEARING THE PARTIES, THE ASSESSEES CONDUCT HAS BEE N MOST IRRESPONSIBLE. WE, ACCORDINGLY, ALLOW THE ASSESSEES INSTANT APPLICATION SUBJECT TO PAYMENT OF COST OF RS.10,000/- (INR TEN THOUSAND ONLY) BY WAY OF DONATION TO THE PRIME MINISTERS NATIONAL RELIEF FUND. IN THE EVENT OF THE ASSESSEE EXHIBITING THE PAYMENT TH US, ITS APPEAL SHALL BE HEARD ON 12.01.2015 , FOR WHICH NO SEPARATE NOTICE OF HEARING SHALL BE SENT TO THE PARTIES; OUR DECISION BEING COMMUNICATED IN THE OPEN COURT AT TH E CONCLUSION OF THE HEARING. NEEDLESS TO ADD, NO ADJOURNMENT, EXCEPT FOR JUST CAUSE, SHAL L BE ALLOWED. WE DECIDE ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES MISCELLANEOUS APPL ICATION IS ALLOWED ON THE AFORE-SAID TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON NOVEMBER 21, 2014 SD/- SD/- (AMIT SHUKLA) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /) MUMBAI; 0 DATED : 21.11.2014 . ../ ROSHANI , SR. PS ! ' #$%& ' &$ / COPY OF THE ORDER FORWARDED TO : 1. 1 #( / THE APPLICANT 2. &'#( / THE RESPONDENT 3. ( 1 ) / THE CIT(A) 4. / CIT - CONCERNED 5. 4 5 & 6 , 1 + 6. , /) / DR, ITAT, MUMBAI 6. 5 89 : ) / GUARD FILE ! ( / BY ORDER, )/(* + (DY./ASSTT. REGISTRAR) , /) / ITAT, MUMBAI