VINOD K FARIA, MUMBAI V. DCIT (OSD) -II CEN RG 7, MUMBAI

MA 382/MUM/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 5939 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 08-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V VINOD KUMAR
• Assessee Lawyers: HIRAL SEJPALA R
• Keywords: Principle of natural justice; Reasonable cause

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL F BE NCH, MUMBAI BEFORE SHRI PAWAN SINGH , JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER M.A.NO.382/MUM/2019 ( I .TA NO.5933/MUM/2017 ( / // / ASSESSMENT YEAR:2009-10) VINOD K. FARIA, FLAT NO.3,FAIRY MANOR, 13,GUNBOW STREET,FORT, MUMBAI 400 076. / VS. DCIT(OSD) - II, CEN RG 7, ROOM NO.413,AAYAKAR BHAVAN, MUMBAI 400 020. ./ ./ PAN/GIR NO. AAAPF 1045 J ( / // / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY: SHRI HIRAL SEJPAL,A.R / RESPONDENT BY: SHRI V.VINOD KUMAR D .R / / / / DATE OF HEARING :08.11.2019 / DATE OF PRONOUNCEMENT :21.11.2019 / O R D E R PER RAJESH KUMAR ACCOUNTANT MEMBER BY WAY OF THIS MISCELLANEOUS APPLICATION, THE ASSES SEE SEEKS THE RECALLING OF EXPARTE ORDER PASSED IN ITA NO.5933/MUM/2019 FOR A.Y. 2009- 10 DATED 08.02.2019. 2. THE LEARNED A.R. OF THE ASSESSEE SUBMITTED FOR T HE BENCH THAT THE ASSESSEE COULD NOT APPEAR ON THE APPOINTED DATE OF HEARING ON 17.12.20 18 DUE TO THE REASONS BEYOND THE CONTROL OF THE ASSESSEE. LD. AR STATED THAT WHEN THE CASE WAS CALLED FOR HEARING , THE ASSESSEE COULD APPEAR AS THE SAID NOTICE WAS SERVED ON THE WIFE OF THE ASSESSEE, WHO DOES NOT UNDERSTAND THE ENGLISH LANGUAGE AND THEREAFTER THE SAID NOTICE HAS BEEN MISPLACED. THE ASSESSEE CAME TO KNOW THAT HEARING HAD O TAKEN PLACE IN THE MATTER, WHEN THE ASSESSEE IS RECEIVED THE EXPARTE ORDER OF THE TRIBUNAL. THE LEARNED A.R. OF THE ASSESSEE FURTHER SUBMITTED THAT THE NON APPEARANCE WAS NEITHER WILFU L NOR WITH MALAFIDE INTENTION OR NOT MA NO.382/MUM/2019 WITH ANY ULTERIOR MOTIVE AND WAS ATTRIBUTABLE TO TH E REASONS, WHICH WERE BEYOND THE CONTROL OF THE ASSESSEE. LEARNED A.R. OF THE ASSESS EE ARGUED THAT THE MECHANISM OF APPEAL HAS BEEN PROVIDED UNDER THE STATUTE, SO THAT FULL J USTICE IS TO BE RENDERED TO THE AFFECTED PARTY AGAINST ANY WRONG DONE TO HIM BY THE LOWER AUTHORITIES. THE LEARNED A.R. OF THE ASSESSEE SUBMITTED THAT IF THE ORDER IS NOT RECALLE D, THE ASSESSEE WOULD BE PUT UP TO IRREPARABLE LOSS AND WOULD ALSO LEAD TO GROSS VIOL ATION OF PRINCIPLE OF NATURAL JUSTICE. THE LEARNED A.R. OF THE ASSESSEE, THEREFORE, PRAYED BEF ORE US THAT THE SAID EXPARTE ORDER MAY KINDLY BE RECALLED. 3. ON THE OTHER HAND, LEARNED D.R. RELIED ON THE O RDER OF THE TRIBUNAL STATING THAT THE ORDER HAS BEEN PASSED AFTER CONSIDERING ALL THE FAC TS OF THE ASSESSEE AND ACCORDINGLY, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE HAS NO MERIT AND MAY BE DISMISSED. 4. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL AVAILABLE ON RECORD, WE OBSERVE THAT THE APPEAL WAS DECIDED EXPARTE BY THE TRIBUNAL DUE TO NON-APPEARANCE OF THE ASSESSEE, WHICH IS ATTRIBUTED TO THE SERVICE OF NOT ICE ON A PERSON, OTHER THAN THE ASSESSEE WHO HAPPENS TO BE NOT AWARE OF THE ENGLISH LANGUAGE AND CONSEQUENTLY THE ASSESSEE WAS NOT AWARE OF ANY DATE OF HEARING AND THUS COULD NOT APPEAR ON THE APPOINTED DATE OF HEARING. WE ARE CONVINCED WITH THE ARGUMENTS PUT F ORWARD BY THE LEARNED A.R. OF THE ASSESSEE THAT APPELLATE MECHANISM HAS BEEN PROVIDED TO RENDER JUSTICE TO THE AFFECTED PARTIES BUT SUBJECT TO REASONABLE CAUSE FOR NON APP EARANCE. IN THE PRESENT CASE, THE ASSESSEE COULD NOT AVAIL THIS OPPORTUNITY DUE TO TH E REASONS STATED HEREINABOVE WHICH IS A GOOD AND SUFFICIENT JUSTIFICATION FOR NON APPEARANC E. ACCORDINGLY, WE ARE OF THE VIEW THAT THE ASSESSEE SHOULD BE GIVEN ONE MORE OPPORTUNITY T O PRESENT HIS CASE BEFORE THE TRIBUNAL, SO THAT THE APPEAL COULD BE DISPOSED OF AFTER HEARI NG THE ASSESSEE. ACCORDINGLY, WE RECALL MA NO.382/MUM/2019 THE ORDER OF THE TRIBUNAL DATED 08.02.2019, AND POS TED THE HEARING IN THE REGULAR COURSE OF HEARING BEFORE THE REGULAR BENCH ON 27.11.2019. NO FRESH NOTICE OF HEARING WOULD BE ISSUED TO THE PARTIES. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST NOVEMBER, 2019. SD/- SD/- (PAWAN SINGH) (RAJESH KUMAR) /JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 21 ST NOVEMBER, 2019 KSS , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / // / (DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI