DINESH METAL INDUSTRIES, MUMBAI V. INCOME TAX OFFICER WARD - 18(1)(4), MUMBAI

MA 411/MUM/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0062 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 07-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MITRA
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E , MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI C.N. PRASAD , JUDICIAL MEMBER MA NO. 411 /MUM/201 8 (OUT OF ITA NO. 5971 /MUM/201 6 ) : A.Y : 20 09 - 10 M/S. DINESH METAL INDUSTRIES GR. FLOOR, 159, KIKA STREET, GULALWADI, MUMBAI 400 002. PAN : AAAFD1308G (APPELLANT) VS. ITO - 18(1)(4), MUMBAI . (RESPONDENT) APPELLANT BY : SHRI DEVENDRA JAIN RESPONDENT BY : SHRI S.K. MITRA DATE OF HEARING : 0 7/0 9 /2018 DATE OF PRONOUNCEMENT : 07 /09/2018 O R D E R PER G.S. PANNU , AM : THE CAPTIONED MISCELLANEOUS APPLICATION HAS BEEN MOVED BY THE ASSESSEE SEEKING RECALL OF THE ORDER DATED 20.12.2017 PASSED BY THE TRIBUNAL IN ASSESSEES APPEAL BEARING ITA NO. 5971/MUM/2016. 2. AT THE TIME OF HEARING, THE LEARNED REPRESENTATIVE FOR THE ASSESSEE POINTED TO THE AFFIDAVIT DATED 04.06.2018 SWORN BY THE PARTNER OF THE ASSESSEE EXPLAINING THE REASONS FOR NON - APPEARANCE ON THE APPOINTED DATE OF HEARING, WHICH READS AS UNDER : - 1. WE HAD FILED AN APPEAL BEFORE HON'BLE ITAT, THE HEARING OF THE SAME WAS FIXED ON 14/08/2017. 2 MA NO. 411/MUM/2018 M/S. DINESH METAL INDUSTRIES 2. AS THE BENCH WAS NOT FUNCTIONING ON 14/08/2017, THE HEARING WAS SUO - MOTO ADJOURNED BY HON'BLE ITAT TO 16/08/2017. THIS CHANGE IN HEARING DATE WAS OVERLOOKED BY US. 3. ON 16/08/2017, HON'BLE ITAT SUO - MOTO ADJOURNED THE HEARING TO 04/12/2017. 4. WE WERE UNDER IMPRESSION THAT NEW HEARING NOTICE WOULD BE SERVED UPON TO US AND IT WAS BECAUSE OF THIS REASON NO ONE APPEARED FOR HEARING ON 04/12/2017 AND THE CASE WAS HEARD EX - PAR TE ON THAT DAY. 5. THE ORDER WAS SUBSEQUENTLY PRONOUNCED ON 20/12/2017 AND WAS RECEIVED BY US ON 17/03/2018. THE LEARNED REPRESENTATIVE PRAYED THAT THE EX PARTE ORDER DATED 20 . 12 .2017 PASSED BY THE TRIBUNAL BE RECALLED AND APPEAL BE RESTORED TO ITS FILE FOR AFFORDING THE ASSESSEE A PROPER AND ADEQUATE OPPORTUNITY OF BEING HEARD BEFORE DISPOSING OFF THE APPEAL. 2. THE LD. DR APPEARING FOR THE REVENUE OPPOSED THE PLEA OF THE ASSESSEE TO RECALL THE ORDER. 3. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBM ISSIONS. CONSIDERING THE AFFIDAVIT FILED BY THE ASSESSEE, WE ARE OF THE VIEW THAT NON - APPEARANCE OF ASSESSEE ON THE APPOINTED DATE OF HEARING WAS NOT DUE TO ANY MALA FIDE INTENTION BUT DUE TO THE WRONG IMPRESSION OF THE ASSESSEE ABOUT THE DATE OF HEARING . THEREFORE, IN THE INTEREST OF JUSTICE, WE DEEM IT FIT AND PROPER TO RECALL OUR ORDER DATED 20 . 12 .2017. THE REGISTRY IS DIRECTED TO POST THE APPEAL OF THE ASSESSEE BEFORE A REGULAR BENCH ON 0 1 .1 0 .2018, A DATE 3 MA NO. 411/MUM/2018 M/S. DINESH METAL INDUSTRIES ANNOUNCED IN THE OPEN COURT AT THE TIME OF HE ARING. SINCE THE DATE OF HEARING HAS BEEN ANNOUNCED IN THE OPEN COURT IN THE PRESENCE OF BOTH THE PARTIES, THE REQUIREMENT OF ISSUANCE OF A FORMAL NOTICE OF HEARING IS HEREBY DISPENSED WITH. 4 . IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. THE ABOVE DECISION WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF BOTH THE PARTIES AT THE CONCLUSION OF THE HEARING ON 07 TH SEPTEMBER , 201 8 . SD/ - SD/ - ( C.N. PRASAD ) JUDICIAL MEMBER (G.S. PANNU) ACCOUNTANT MEMBER MUMBAI, DATE : 7 T H SEPTEMBER, 201 8 COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, E BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI