NCC-SMC(JV), V. DDIT (IT) 4(1),

MA 39/MUM/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1897 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-04-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 31-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK SURI
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'B' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER MA NO. 39/MUM/2014 (ARISING OUT OF ITA NO. 514/MUM/2009) (ASSESSMENT YEAR: 2005-06) M/S. NCC-SMC (JV) DCIT, CIRCLE 3 101, AKRUTI-SMC BUILDING LBS MARG, KHOPAT THANE (W) 400601 VS. VARDAAN BUILDING, LOWER GROUND FLOOR, MIDC WAGLE ESTATE, THANE PAN - AAEFN0093N APPLICANT RESPONDENT APPLICANT BY: SHRI NEELKANTH KHANDELWAL RESPONDENT BY: SHRI ASHOK SURI DATE OF HEARING: 11.04.2014 DATE OF PRONOUNCEMENT: 11.04.2014 O R D E R PER D. MANMOHAN, V.P. BY THIS MISCELLANEOUS APPLICATION THE ASSESSEE SEEK S RECALL OF THE EXPARTE ORDER, PASSED BY THE ITAT, IN EXERCISE OF T HE POWERS VESTED IN US UNDER RULE 25 OF THE APPELLATE TRIBUNAL RULES. 2. THE LEARNED COUNSEL SUBMITTED THAT THE REVENUE PREF ERRED AN APPEAL WHEREIN THEY HAVE MENTIONED THE OLD ADDRESS OF THE ASSESSEE FIRM; IN THE CAUSE TITLE AS WELL AS ITEM NO. 11 OF FORM NO. 36 T HE OLD ADDRESS OF THE ASSESSEE FIRM WAS MENTIONED TO WHICH NOTICES WERE S ENT TO THE PARTY BY REGISTERED POST WHICH WERE RETURNED UNSERVED WITH T HE POSTAL REMARKS PARTY NOT RESIDING AT THE GIVEN ADDRESS. HOWEVER, THE TR IBUNAL PROCEEDED ON THE FOOTING THAT THE ISSUE IS SQUARELY COVERED BY THE D ECISION OF THE LARGER BENCH OF THE TRIBUNAL AND ACCORDINGLY DISPOSED OF THE MAT TER EXPARTE, QUA ASSESSEE OVERLOOKING THE FACT THAT IT IS IN VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE AND THE ASSESSEE HAS SUFFICIENT CAUSE FOR NON-APPEA RANCE ON THE DATE FIXED FOR HEARING. IT WAS ALSO SUBMITTED THAT EVEN ON MER ITS THE TRIBUNAL HAS COMMITTED AN ERROR IN ASSUMING THAT THE ISSUE IS CO VERED BY THE DECISION OF THE LARGER BENCH IN THE CASE OF B.T. PATIL & SONS B ELGAUM CONSTRUCTION (P) LTD. WHEREAS THE ISSUE IS NOW COVERED IN FAVOUR OF THE ASSESSEE BY THE MA NO. 39/MUM/2014 M/S. NCC-SMC (JV) 2 DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CA SE OF CIT VS. ABG HEAVY INDUSTRIES LTD. 322 ITR 323. THE LEARNED COUNSEL AL SO SUBMITTED THAT THE NON-ATTENDANCE ON THE DATE FIXED FOR HEARING WAS PU RELY ON THE FACT THAT THE ASSESSEE WAS TOTALLY UNAWARE OF THE DATE OF HEARING AS NOTICE OF HEARING WAS NOT RECEIVED AND HENCE IT IS A FIT CASE FOR RECALL OF THE ORDER IN EXERCISE OF THE POWERS VESTED IN THE TRIBUNAL UNDER RULE 25 OF THE APPELLATE TRIBUNAL RULES. 3. WE HAVE ALSO HEARD THE LEARNED D.R. IN THIS REGARD, WHO MERELY SUBMITTED THAT THE CHANGE OF ADDRESS WAS NOT IN THE NOTICE OF THE AO/ APPELLANT. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. HAVING RE GARD TO THE CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT THE ASSESSEE HAS SUFFICIENT CAUSE FOR NON-APPEARANCE ON THE DATE FIXED FOR HEAR ING. THEREFORE, WE RECALL THE EXPARTE ORDER DATED 02.02.2010, UNDER RULE 25 O F THE APPELLATE TRIBUNAL RULES, AND DIRECT THE REGISTRY TO POST THE APPEAL F OR FINAL HEARING ON 01.09.2014. SINCE THE DATE IS ANNOUNCED IN THE OPEN COURT, NOTICE TO THE PARTIES IS DISPENSED WITH. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH APRIL, 2014. SD/- SD/- (R.C. SHARMA) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATED: 11 TH APRIL, 2014 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) I. THANE 4. THE CIT II, THANE 5. THE DR, B BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.