LATA D. SHAH, V. ITO WD 18(2)(1),

MA 409/MUM/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 5384 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-02-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 25-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRAVAN KUMARDR PER R K
• Keywords: Reasonable cause

Judgement Text

1 MA NOS.409 &586/MUM/2010 IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI MUMBAI MUMBAI MUMBAI A AA ABENCH BENCH BENCH BENCH MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI D MANMOHAN, VP & SHRI D MANMOHAN, VP & SHRI D MANMOHAN, VP & SHRI D MANMOHAN, VP & SHRI R RR R K PANDA, AM K PANDA, AM K PANDA, AM K PANDA, AM MISCELLANEOUS APPLICATIONS MISCELLANEOUS APPLICATIONS MISCELLANEOUS APPLICATIONS MISCELLANEOUS APPLICATIONS 409 & 586/MUM/2010 409 & 586/MUM/2010 409 & 586/MUM/2010 409 & 586/MUM/2010 ARISING OUT OF ITA NOS. 3804/MUM/2008 (ASST YEAR 2005-06) SMT LATA D SHAH B-35 DALAS BUILDING GYAN MANDIR ROAD DADRA(W)MUMBAI 28 VS THE INCOME TAX OFFICER WARD 18(2)(1), MUMBAI ( (( ( APP APP APP APPLICANT LICANT LICANT LICANT ) )) ) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) PAN NO. PAN NO. PAN NO. PAN NO.AAGPS5656L AAGPS5656L AAGPS5656L AAGPS5656L ASSESSEE BY DHARMESH SHAH REVENUE BY SHRI SHRAVAN KUMAR/DR PER R K PANDA, AM PER R K PANDA, AM PER R K PANDA, AM PER R K PANDA, AM THE ASSESSEE, THROUGH THESE MISCELLANEOUS APPLICAT IONS REQUESTS THE TRIBUNAL TO RECALL THE EX-PARTY ORDER PASSED BY IT DISMISSING THE APPEAL OF THE ASSESSEE 2 THE LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT TH E MA NO.409/MUM/2010 HAS BEEN FILED EXPLAINING THE REASONS FOR NON ATTEN DANCE BY THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE. FURTHER, THE TRIBU NAL HAS PASSED THE ORDER WITHOUT PROPER APPRECIATION OF FACTS AND EVIDENCES. 2.1 SIMILARLY, IN MA IN NO. 586/MUM/2010, THE ASSES SEE MADE AN APPLICATION U/S 254(2) OF THE I T ACT R.W.R 24 OF THE ITAT RULE S. 2 MA NOS.409 &586/MUM/2010 3 THE LD COUNSEL FOR THE ASSESSEE, REFERRING TO THE CONTENTS OF BOTH THE MISCELLANEOUS APPLICATIONS AND THE AFFIDAVIT FILED BY SHRI BIPIN L THAKKER, CHARTERED ACCOUNTANT EXPLAINED THE REASONS FOR NON APPEARANCE OF THE LD COUNSEL ON THE DATE OF HEARING. HE SUBMITTED THAT THE TRIBUNAL HAS DECIDED THE ISSUE AGAINST THE ASSESSEE WITHOUT APPRECIATING THE FACTS AND WITHOUT CONSIDERING THE VARIOUS EVIDENCES FILED BEFORE THE ASSESSING OFFICER AS WELL AS THE CIT(A) WHICH COULD NOT BE BROUGHT TO THE NOTIC E OF THE TRIBUNAL. REFERRING TO THE DECISION OF THE CO-ORDINATE BENCH OF THE TRIBUN AL IN THE CASE OF THE HUSBAND OF THE ASSESSEE IN ITA NO.3803/MUM/08 ORDER DATED 2 0.10.11.2010 FOR THE ASSESSMENT YEAR 2005-06, HE SUBMITTED THAT THE TRIB UNAL, UNDER IDENTICAL FACTS AND CIRCUMSTANCES HAS RESTORED THE MATTER TO THE FI LE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION IN THE LIGHT OF THE CBDT CIRCULA R NO. 768 READ WITH 704 AFTER CARRYING OUT THE NECESSARY VERIFICATION. HE, ACCOR DINGLY, SUBMITTED THAT IN THE INTEREST OF JUSTICE THE ORDER OF THE TRIBUNAL MAY B E RECALLED AND NECESSARY ORDERS MAY BE PASSED IN THE LIGHT OF THE VARIOUS EVIDENCES FILED BEFORE THE ASSESSING OFFICER AS WELL AS THE CIT(A). 3.1 THE LD DR, ON THE OTHER HAND SUBMITTED THAT SI NCE THE TRIBUNAL HAS PASSED AN ELABORATE ORDER DISMISSING THE APPEAL OF THE ASSESSEE; THEREFORE, THE SAME SHOULD BE UPHELD AND BOTH THE MISCELLANEOUS AP PLICATIONS FILED BY THE ASSESSEE SHOULD BE DISMISSED. 4 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS MADE BY BOTH THE PARTIES. ADMITTEDLY, THE CASE HAS BEEN DECIDED ON MERIT IN A BSENCE OF THE ASSESSEE. IT IS THE SUBMISSION OF THE LD COUNSEL FOR THE ASSESSEE T HAT VARIOUS DOCUMENTS FILED 3 MA NOS.409 &586/MUM/2010 BEFORE THE ASSESSING OFFICER AND THE CIT(A) COULD N OT BE CONSIDERED BY THE TRIBUNAL IN THE ABSENCE OF THE LD COUNSEL FOR THE A SSESSEE ON THE DATE OF HEARING DUE TO UNAVOIDABLE CIRCUMSTANCES AS PER THE AFFIDAV IT FILED BY SHRI BIPIN L THAKKER. IT IS ALSO THE SUBMISSION OF THE LD COUNSEL FOR THE ASSESSEE THAT UNDER IDENTICAL FACTS AND CIRCUMSTANCES, THE TRIBUNAL IN THE CASE OF THE HUSBAND OF THE ASSESSEE HAS RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION IN THE LIGHT OF THE BOARD CIRCULAR NO. 768 READ WITH 704 AFTER CARRYING OUT THE NECESSARY VERIFICATION. 5 AFTER GOING THROUGH THE CONTENTS OF THE MAS AS WE LL AS THE AFFIDAVITS FILED BY THE ASSESSEE AS WELL AS OF THAT OF SHRI BIPIN L THAKKER, CA, WHO WAS LOOKING AFTER THE TAX MATTERS OF THE ASSESSEE, WE ARE SATIS FIED THAT THERE WAS A REASONABLE CAUSE ON THE PART OF THE ASSESSEE FOR SU CH NON APPEARANCE ON THE DATE OF HEARING. ALTHOUGH THE TRIBUNAL HAS PASSED ELABORATE ORDER, WE FIND THE SAME HAS BEEN PASSED IN THE ABSENCE OF THE ASSESSEE . WE, THEREFORE, IN THE INTEREST OF JUSTICE, DEEM IT PROPER TO RECALL THE E X-PARTY ORDER PASSED BY THE TRIBUNAL AND DIRECT THE REGISTRY TO FIX THE HEARING OF THE APPEAL IN DUE COURSE. THE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSE E ARE ACCORDINGLY ALLOWED. 6 IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATION S FILED BY THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED ON THE 11TH, DAY OF FEB 2011. SD/- SD/- ( (( ( D MANMOHAN D MANMOHAN D MANMOHAN D MANMOHAN ) )) ) VICE PRESIDENT ( (( ( R K PANDA R K PANDA R K PANDA R K PANDA ) )) ) ACCOUNTANT MEMBER PLACE: MUMBAI : DATED: 11 TH , FEB 2011 RAJ* 4 MA NOS.409 &586/MUM/2010 COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI