GRISHMA CONSTRUCTION & TRADING PVT. LTD., MUMBAI V. ITO - 9(1)(4), MUMBAI

MA 369/MUM/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2563 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-10-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2004-2005
• Appeal Filed On: 25-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SANJAY R PARIKH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUM BAI , , BEFORE SHRI SANJAY ARORA, AM AND SHRI VIVEK VARMA, JM ./MA NO. 369/MUM/2014 (ARISING OUT OF ITA NO. 3702/MUM/2010) ( / ASSESSMENT YEARS: 2004-05) GRISHMA CONSTRUCTIONS & TRADING PRIVATE LIMITED G-1, GROUND FLOOR, NIRMALS NEST, VAYUNDEVTA MANDIR COMPLEX, DEVIDAS ROAD, BORIVALI (E), MUMBAI-400 103 / VS. INCOME-TAX OFFICER 9(1)(4), AAYAKAR BHAVAN, MUMBAI ./' ./PAN/GIR NO. AAACG 1277 C ( # $ /APPELLANT ) : ( %& $ / RESPONDENT ) # $ ' ( / APPELLANT BY : SHRI SANJAY R. PARIKH %& $ ' ( / RESPONDENT BY : SHRI RUDOLPH N. DSOUZA ) * ' + , / DATE OF HEARING : 17.10.2014 -./ ' + , / DATE OF PRONOUNCEMENT : 17.10.2014 0 / O R D E R PER SANJAY ARORA, A. M.: THIS IS A MISCELLANEOUS PETITION BY THE ASSESSEE AG AINST THE ORDER U/S. 254(1) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) BY THE TRIBUNAL DATED 09.12.2011 IN ITS CASE FOR ASSESSMENT YEAR (A.Y.) 2004-05. 2. THE TRIBUNAL VIDE THE IMPUGNED ORDER DISMISSED T HE ASSESSEES APPEAL IN LIMINE , TREATING IT AS UNADMITTED, FOR WANT OF PROSECUTION, FOLLOWING THE DECISIONS IN THE CASE OF 2 MA NO. 369/MUM/2014 (A.Y. 2004-05) GRISHMA CONSTRUCTIONS & TRADING PRIVATE LIMITED VS. ITO CIT VS. MULTIPLAN (INDIA) P. LTD. 38 ITD 320 (DEL.) AND ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT [1997] 223 ITR 480 (MP). THE ASSESSEE, PER ITS INS TANT APPLICATION, WHICH IS SUPPORTED BY AN AFFIDAVIT DATED 21.08.2014 BY ONE, SHRI RAKESH VISHWANANTH WARADKAR, CLAIMING TO BE THE ACCOUNTANT OF THE ASSESSEE-COMPA NY, CONTENDS THAT THE NON- PROSECUTION OF ITS APPEAL BEFORE THE TRIBUNAL WAS D UE TO IRREGULAR ATTENDANCE OF ITS ACCOUNTANT DURING THE RELEVANT TIME, WHO DUE TO HIS ILL-HEALTH FAILED TO COMMUNICATE THE NOTICE/S OF HEARING TO THE DIRECTORS FOR PROPER ACT ION. THAT THE ASSESSEE WAS EARNEST IN PROSECUTING ITS APPEAL, AND STANDS PREJUDICED ON AC COUNT ITS IN LIMINE DISMISSAL BY THE TRIBUNAL. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. THERE HAS CLEARLY BEEN A LACK OF APPLICATION BY THE ASSESSEE IN PROSE CUTING ITS APPEAL, EVEN AS OBSERVED BY THE BENCH DURING HEARING. THE ACCOUNTANT IS ONLY TH E ASSESSEES OWN EMPLOYEE, SO THAT IT IS A CASE OF ONE ARM OF THE ASSESSEE BLAMING THE OT HER. SO, HOWEVER, WE ARE INCLINED TO GIVE IT A BENEFIT OF DOUBT, CONSIDERING THAT IT MAY WELL BE THAT THE ACCOUNTANT, AS THE CONCERNED PERSON, WAS INDISPOSED AT THE RELEVANT TI ME, AND WHICH MAY HAVE LED TO THE NON-REPRESENTATION AND, THUS, THE IMPUGNED IN LIMINE DISMISSAL. THE ASSESSEE IS DIRECTED TO BE REGULAR IN THE PROCEEDINGS BEFORE THE TRIBUNA L, AS WAS ASSURED BY THE LD. AUTHORIZED REPRESENTATIVE (AR) BEFORE US. UNDER THESE CIRCUMST ANCES, WE CONSIDER IT FIT TO RECALL THE IMPUGNED ORDER, TO ENABLE THE ASSESSEES APPEAL BEI NG HEARD AFRESH AND A DECISION ON MERITS. THE DATE OF ITS HEARING BY THE REGULAR BENC H, WITH THE CONSENT OF THE PARTIES, WAS ANNOUNCED IN THE OPEN COURT FOR 16.12.2014 , SO THAT NO SEPARATE NOTICE OF HEARING WOULD FOLLOW. WE DECIDE ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES MISCELLANEOUS APPL ICATION IS ALLOWED. #1/ +2 1+ ' 3 + ' + 45 ORDER PRONOUNCED IN THE OPEN COURT ON OCTOBER 17, 2 014. SD/- SD/- (VIVEK VARMA) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER ) 6* MUMBAI; 7 DATED : 17.10.2014 3 MA NO. 369/MUM/2014 (A.Y. 2004-05) GRISHMA CONSTRUCTIONS & TRADING PRIVATE LIMITED VS. ITO .../ ROSHANI , SR. PS !' # $%&' (!'% / COPY OF THE ORDER FORWARDED TO : 1. # $ / THE APPELLANT 2. %& $ / THE RESPONDENT 3. ) 8+ ( # ) / THE CIT(A) 4. ) 8+ / CIT - CONCERNED 5. ; < %+= , # , =/ , ) 6* / DR, ITAT, MUMBAI 6. < > ? * / GUARD FILE !' ) / BY ORDER, */)+ (DY./ASSTT. REGISTRAR) , ) 6* / ITAT, MUMBAI