RAJHANS PAPER COMPANY, MUMBAI V. INCOME TAX OFFICER -14(2)-3, MUMBAI

MA 400/MUM/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 8043 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 14-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUNKUMAR
• Keywords: Bonafide belief

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE SHRI C.N. PRASAD, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER MA NO.400/M/2017 (ARISING OUT OF ITA NO.1237/M/2014) ASSESSMENT YEAR: 2009-10 M/S. RAJHANS PAPER COMPANY, 10 GAZDAR STREET, 2/22 SHREE RAM NIWAS, 2 ND FLOOR, ROOM NO.22, CHIRA BAZAR, J.S.S. ROAD, MUMBAI 400 002 PAN: AAFFR 8622J VS. INCOME TAX OFFICER- 14(2)(3), MUMBAI (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : SHRI RAHUL SARDA, A.R. REVENUE BY : SHRI CHAUDHARY ARUN KUMAR, D.R. DATE OF HEARING : 07.09.2018 DATE OF PRONOUNCEMENT : 25.09.2018 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: BY WAY OF THIS MISCELLANEOUS APPLICATION, THE ASSE SSEE SEEKS RECALLING OF THE ORDER PASSED BY THE TRIBUNAL IN ITA NO.1237/M/2014 A.Y. 2009-10 DATED 28.12.2016. 2. THE LD. A.R. SUBMITTED BEFORE THE BENCH THAT THE ORDER WAS PASSED EX-PARTE BY THE TRIBUNAL DUE TO NON APPEARAN CE OF THE ASSESSEE ON THE DATE APPOINTED FOR HEARING. THE LD . A.R. SUBMITTED THAT THE COUNSEL APPOINTED BY THE ASSESSE E DID NOT APPEAR ON THE DATE OF HEARING WHEREAS THE ASSESSEE WAS UNDER BONAFIDE BELIEF THAT HE WAS BEING REPRESENTED BEFOR E THE ITAT BY HIS COUNSEL. MOREOVER, THE CORRESPONDENCE ADDRESS MENTIONED MA NO.400/M/2017 (ARISING OUT OF ITA NO.1237/M/2014) M/S. RAJHANS PAPER COMPANY 2 IN THE FORM NO.36 WAS THAT OF THE COUNSEL OF THE AS SESSEE AND NOT OF THE ASSESSEE AND THEREFORE THE ASSESSEE WAS NOT AT ALL AWARE ABOUT THE FINAL OPPORTUNITY GRANTED BY THE TR IBUNAL TO THE ASSESSEE ON 18.10.16 WHEN THE CASE WAS DISPOSED OF EX-PARTE. THE LD. A.R. SUBMITTED THAT THE NON APPEARANCE WAS UNINTENTIONAL, INADVERTENT AND DUE TO CIRCUMSTANCES BEYOND THE CONTROL OF THE ASSESSEE AND THE ASSESSEE SHOULD NOT BE PENALIZED FOR THE MISTAKES OF THE COUNSEL. THEREFORE THE ORDE R PASSED IN ITA NO.1237/M/2014 MAY BE RECALLED AND REFIXED FOR HEARING IN THE INTEREST OF JUSTICE AND FAIR PLAY. THE LD. A.R . FURTHER PRAYED BEFORE THE BENCH THAT THE MISCELLANEOUS APPLICATION FILED WITHIN SIX MONTHS FROM THE DATE OF SERVICE OF THE ORDER AN D THEREFORE WAS WELL WITHIN TIME UNDER SECTION 254(2) OF THE IN COME TAX ACT. IN DEFENCE OF HIS ARGUMENT, THE LD. A.R. RELIED ON THE DECISION OF CO-ORDINATE BENCH OF THE TRIBUNAL IN MA NO./42/CHD/ 2018 (IN ITA NO.101/CHD/2017) A.Y. 2013-14 ORDER DATED 27.04 .2018 WHEREIN IT HAS BEEN HELD THAT THE PERIOD OF SIX MON THS HAS TO BE RECKONED FROM THE DATE OF SERVICE OF THE ORDER AND NOT FROM THE DATE OF PASSING OF THE ORDER OR T FROM THE DATE OF PRONOUNCEMENT OF THE ORDER. 3. THE LD. D.R., ON THE OTHER HAND, STRONGLY OPPOSE D TO THE ARGUMENTS OF THE COUNSEL OF THE ASSESSEE AND PRAYED THAT THE MISCELLANEOUS APPLICATION IS NOT MAINTAINABLE AS BE ING FILED BEYOND A PERIOD OF SIX MONTHS FROM THE PRONOUNCEMEN T OF THE ORDER AND THEREFORE BARRED BY LIMITATION IN TERMS O F A PROVISION OF SECTION 254(2) OF THE ACT. ON MERIT ALSO THE LD . D.R. SUBMITTED THAT THE ASSESSEE DID NOT APPEAR BEFORE T HE TRIBUNAL DESPITE SERVICE OF NOTICE AND REPEATED REMINDERS AN D THEREFORE MA NO.400/M/2017 (ARISING OUT OF ITA NO.1237/M/2014) M/S. RAJHANS PAPER COMPANY 3 THE ORDER PASSED BY THE TRIBUNAL IS PERFECT AND AS PER LAW AND NEED NOT TO BE RECALLED. 4. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD, WE FIND THAT THE EX-PARTE ORDER CAME TO BE PASSED IN THIS CASE DUE TO NON ATTENDANCE OF THE ASSESSEE OR HIS A UTHORISED REPRESENTATIVE ON 18.10.2016. SO FAR AS THE MAINTAI NABILITY OF THE MA IS CONCERNED, THE SAME IS FILED FORM THE DAT E OF SERVICE OF THE ORDER AND THEREFORE WILL WITHIN SIX MONTHS AND AS PER THE PROVISION OF SECTION 254(2) OF THE ACT. WE ALSO N OTE THAT THE CORRESPONDING ADDRESS MENTIONED IN THE FORM NO.36 W AS THAT OF THE CHARTERED ACCOUNTANT OF THE ASSESSEE AND NOT OF THE ASSESSEE. UNDOUBTEDLY, THE APPEAL OF THE ASSESSEE IS DISPOSED OF EX-PARTE WITHOUT HEARING THE ASSESSEE ON MERIT. CO NSIDERING THE FACTS IN TOTALITY, WE ARE OF THE VIEW THAT THE ASSE SSEE SHOULD BE GIVEN ONE MORE OPPORTUNITY TO PRESENT HIS CASE BEFO RE THE TRIBUNAL SO THAT THE ASSESSEE IS HEARD AND APPEAL I S DISPOSED OF ON MERIT IN THE INTEREST OF JUSTICE AND FAIRPLAY. ACCORDINGLY, WE RECALL OUR ORDER DATED 28.12.2016 TO BE HEARD AFRES H AND REGISTRY IS DIRECTED TO FIX THE CASE BEFORE THE REG ULAR BENCH. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 25.09.2018. SD/- SD/- (C.N. PRASAD) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 25.09.2018. * KISHORE, SR. P.S. MA NO.400/M/2017 (ARISING OUT OF ITA NO.1237/M/2014) M/S. RAJHANS PAPER COMPANY 4 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ ASSTT. REGISTRAR, ITAT, MUMBAI.