TOTO CONSTRUCTION P. LTD, V. ITO WD 2(20(3),

MA 374/MUM/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6979 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-09-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2004-2005
• Appeal Filed On: 07-07-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K SINGH
• Keywords: Additional evidence; Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC : MUMBAI BEFORE SHRI R. K. PANDA, A.M. AND SHRI V. D. RAO, J .M. MA NO.374/MUM/2011 ARISING OUT OF ITA NO.7716/MUM/2010 ASSESSMENT YEAR: 2004-05 M/S. TOTOCONSTRUCTION. C OM PVT. LTD. 5/46, TARDEO A.C. MARKET BUILDING, TARDEO ROAD, MUMBAI 400 034 PAN NO: AABCT3804B VS. INCOME TAX OFFICER 2(3)(3), MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K. GOPAL RESPONDENT BY : SHRI S . K. SINGH DATE OF HEARING : 23 .0 9 .2011 DATE OF PRONOUNCEMENT : 28.09.2011 ORDER PER R. K. PANDA (AM) : THE ASSESSEE THROUGH THIS MISCELLANEOUS APPLICATI ON REQUESTS THE TRIBUNAL TO RECALL THE EX PARTE ORDER PASSED BY IT, DISMISSING THE APPEAL OF THE ASSESSEE. 2. THE LD. COUNSEL FOR THE ASSESSEE REFERRING TO T HE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE SUBMITTED THAT TH E ASSESSEE HAS SHIFTED ITS OFFICE W.E.F. 01.01.2011, FOR WHICH THE NOTICE SENT BY THE REGISTRY THROUGH RPAD COULD NOT BE SERVED ON THE ASSESSEE AN D WAS RETURNED UN- SERVED BY THE POSTAL AUTHORITIES. THEREFORE, NO ONE COULD APPEAR BEFORE THE MA NO.374/MUM/2011 M/S. TOTOCONSTRUCTION.COM PVT. LTD. 2 TRIBUNAL ON THE DATE OF HEARING. HE SUBMITTED THAT THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE BY NOT ADMITTI NG THE ADDITIONAL EVIDENCES FILED BEFORE HIM UNDER RULE 46A. ALTHOUGH THE ASSESSEE HAS A STRONG CASE IN HIS FAVOUR, THE TRIBUNAL DISMISSED T HE APPEAL AFTER DECIDING THE SAME ON MERITS BUT WITHOUT CONSIDERING THE SUBM ISSIONS OF THE ASSESSEE DUE TO NON APPEARANCE. REFERRING TO RULE 2 4 OF THE ITAT RULES, 1963 HE SUBMITTED THAT IN THE INTEREST OF NATURAL J USTICE THE EX PARTE ORDER OF THE TRIBUNAL SHOULD BE RECALLED AND AN OPPORTUNI TY BE GIVEN TO THE ASSESSEE TO REPRESENT ITS CASE. 3. THE LD. DR ON THE OTHER HAND, STRONGLY OPPOSED T HE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE. HE SUBMITTED THA T THE TRIBUNAL HAS DECIDED THE ISSUE ON MERIT. THERE IS NO APPARENT MI STAKE IN THE ORDER OF THE TRIBUNAL. AFTER CHANGE OF THE OFFICE ADDRESS, T HE ASSESSEE HAS NOT CARED TO INTIMATE THE CHANGE OF ADDRESS TO THE TRIBUNAL. UNDER THESE CIRCUMSTANCES, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE SHOULD BE DISMISSED. 4. THE LD. COUNSEL FOR THE ASSESSEE IN HIS REJOINDE R SUBMITTED THAT THE ASSESSEE HAS INTIMATED THE NEW ADDRESS TO THE REGIS TRY IN THE MISCELLANEOUS APPLICATION. 5. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES. WE FIND RULE 24 OF THE ITAT RULE, 1963 READS AS UNDER: - HEARING OF APPEAL EX PARTE FOR DEFAULT BY THE APPEL LANT. 24. WHERE, ON THE DAY FIXED FOR HEARING OR ON ANY OTHER DATE TO WHICH THE HEARING MAY BE ADJOURNED, THE APPELLAN T DOES NOT APPEAR IN PERSON OR THROUGH AN AUTHORIZED REPRESENT ATIVE WHEN THE APPEAL IS CALLED ON FOR HEARING, THE TRIBUNAL M AY DISPOSE OF THE APPEAL ON MERITS AFTER HEARING THE RESPONDENT : MA NO.374/MUM/2011 M/S. TOTOCONSTRUCTION.COM PVT. LTD. 3 PROVIDED THAT WHERE AN APPEAL HAS BEEN DISPOSED OF AS PROVIDED ABOVE AND THE APPELLANT APPEARS AFTERWARDS AND SATISFIES THE TRIBUNAL THAT THERE WAS SUFFICIENT CA USE FOR HIS NON-APPEARANCE, WHEN THE APPEAL WAS CALLED ON FOR H EARING, THE TRIBUNAL SHALL MAKE AN ORDER SETTING ASIDE THE EX PARTE ORDER AND RESTORING THE APPEAL. 6. IN THE INSTANT CASE THE ASSESSEE HAS EXPLAINED T HE REASONS FOR HIS NON APPEARANCE ON THE DATE OF HEARING. AFTER CONSID ERING THE ARGUMENTS ADVANCED BY THE LD. COUNSEL FOR THE ASSESSEE AND TH E CONTENTS OF THE MISCELLANEOUS APPLICATION, WE ARE SATISFIED THAT TH ERE WAS A REASONABLE CAUSE ON THE PART OF THE ASSESSEE FOR SUCH NON APPE ARANCE ON THE DATE OF HEARING. WE THEREFORE, RECALL THE ORDER OF THE TRIB UNAL FOR FRESH HEARING. THE REGISTRY IS DIRECTED TO ISSUE NOTICE TO THE PAR TIES IN THE NORMAL COURSE. THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ACCORDINGLY ALLOWED. 7. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THIS 28 TH DAY OF SEPTEMBER, 2011. SD/- SD/- ( V. D. RAO ) ( R. K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT: 28.09.2011 COPY FORWARDED TO : 1. THE APPELLANT, 2. THE RESPONDENT, 3. THE C.I.T. 4. CIT (A) 5. THE DR, SMC - BENCH, ITAT, MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI ROSHANI