SHRI RAKESH MTILAL JAIN, MUMBAI V. INCOME TAX OFFICER 19(3)(1), MUMBAI

MA 419/MUM/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4165 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-05-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 18-07-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

म ु ंबई ठ “एस एम स ” स , स सम! IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “SMC”, MUMBAI BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER MA NO.419/MUM/2019 [ Arising out of ITA NO.2241/MUM/2018(A.Y.2009-10) ] Shri Rakesh Mittal Jain, 184, Shop No.G-3, Vimal Building, Khetwadi, Mumbai 400 064. PAN: ADIPJ-7243-D ..... " # /Applicant बन म Vs. Income Tax Officer 19(3)(1), 2 nd Floor, Matru Mandir, Tardeo, Mumbai 400 007. ..... " & /Respondent " # ' / Applicant by : None " & ' /Respondent by : Shri Hoshang B. Irani स ु न ई ( & / Date of hearing : 27/05/2022 )*+ ( & / Date of pronouncement : 27/05/2022 आदेश/ ORDER PER VIKAS AWASTHY, JM: This Miscellaneous Application has been filed by the assessee u/r.24 of the Income Tax (Appellate Tribunal) Rules, 1963 with a prayer to recall the order of Tribunal in ITA No.2241/Mum/2018 dated 16/01/2019. 2. This Miscellaneous Application was filed way back in 2019. On the initial two dates of hearing i.e. 27/09/2019 and 13/12/2019 there was 2 MA NO.419/MUM/2019 representation on behalf of the assessee. On 27/09/2019 one Mr. Navin Kumar Mishra appeared and on 13/12/2019 Mr. Sushant Kotian appeared on behalf of the assessee and sought adjournment. Thereafter, none appeared to represent the assessee. Repeated notices were sent to the assessee on the address mentioned in application. Despite repeated notice neither the assessee nor any Authorized Representative of the assessee appeared. The notices sent through RPAD were duly served as the same have not been received back unserved from the Postal Authorities except once with remarks. ‘not known’. Thereafter, three notices were issued for hearing fixed for 25/03/2022, 02/04/2022 and 27/05/2022. The said notices sent through RPAD were not received back unserved. Hence, deemed to be served. From the conduct of the assessee it appears that the assessee is not keen to pursue the Miscellaneous Application. Therefore, this application is taken up for hearing with the assistance of ld. Departmental Representative and the material available on record. 3. Shri Hoshang B. Irani representing the Department submitted that there is no mistake apparent on record in the order passed by Tribunal. The order sought to be recalled by the assessee applicant is a detailed and reasoned order passed on merits. The ld. Departmental Representative prayed for dismissing the Miscellaneous Application. 4. The submissions made by ld.Departmental Representative heard. The assessee by way of this application is seeking recall of the order purportedly dismissing appeal of the assessee for non-prosecution. The application itself is misconceived as the Tribunal has passed the order on merits of the issue 3 MA NO.419/MUM/2019 assailed in the appeal. The Tribunal has passed a detailed order dealing with the issue on merits and thereafter dismissed the appeal of assessee. 5. The present application has been filed by the assessee u/r.24 of the Income Tax Appellate Tribunal Rules, 1963. The proviso to Rule 24 mandates that where an appeal has been disposed of on merits in ex-parte proceedings and the appellant appears afterwards and satisfies the Tribunal that there was sufficient cause for his non-appearance, when the appeal was called for hearing, the Tribunal shall recall ex-parte order and restore the appeal. In the present case, the reason given by assessee for non-appearance was that the Authorized Representative of the assessee was unaware that the case was adjourned to 07/01/2019. As per the contentions of the assessee in the application the appeal was fixed for hearing on 28/12/2018. On the said date adjournment was sought as the arguing counsel was not available. The request for adjournment was considered by the Tribunal and the appeal was thereafter adjourned to 07/01/2019. On 07/01/2019 non-appeared on behalf of the assessee nor any request for adjournment was received. Hence, the Tribunal proceeded to decide the appeal in an ex-parte proceedings. The reason given for non-appearance of the Authorized Representative of the assessee on the date fixed for hearing of the appeal does not show “sufficient cause” for non-appearance. Once the appeal has been adjourned at the request of the Authorized Representative of the assessee, it is incumbent upon the Authorized Representative / assessee to keep track of the next date of hearing. It is the duty of the Authorized Representative / assessee to be vigilant about the proceedings and the next date fixed for hearing of the appeal. Even now neither the assessee nor Authorized Representative of the 4 MA NO.419/MUM/2019 assessee has bothered to respond to repeated notices for hearing of the Miscellaneous Application which is languishing in the Tribunal since 2019. 6. Be that as it may, averment made in the application that the appeal has been dismissed for non-prosecution is itself contrary to the facts. Taking into consideration entirety of facts the Miscellaneous Application filed by the assessee is dismissed being devoid of any merit. 7. In the result, the miscellaneous application by the assessee is dismissed. Order pronounced in the open Court on Friday the 27 th day of May, 2022 Sd/- (VIKAS AWASTHY) स /JUDICIAL MEMBER म ु ंबई/ Mumbai, , न ं /Dated 27/05/2022 Vm, Sr. PS(O/S) े Copy of the Order forwarded to : 1. #/The Appellant , 2. " & / The Respondent. 3. ु -&( )/ The CIT(A)- 4. ु -& CIT 5. 0 1 " & न , . . ., म ु बंई/DR, ITAT, Mumbai 6. 1 34 5 6 /Guard file. BY ORDER, //True Copy// (Dy./Asstt. Registrar) ITAT, Mumbai