NIDHI PREMISES P LTD, MUMBAI V. ITO 13(1)(1), MUMBAI

MA 428/MUM/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5464 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 29-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AKHTAR HANSARI
• Section: 254(2)

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL B BENCH MUMB AI BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND SHRI M. BALAGANESH, ACCOUNTANT MEMBER M.A. NO. 428/MUM/2019 IN ITA NO. 3607/MUM/2017 (A.Y 2007-08 ) NIDHI PREMISES PVT. LTD. (NOW KNOWN AS VIRTUOSO REALTY INFRA PVT. LTD.), 601, SENATE, AURA BIPLEX SV ROAD, BORIVALI WEST, MUMBAI-400092. PAN: AACCN3605K VS. ITO, WARD-13(1)(1), ROOM NO. 225, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020. APPELLANT RESPONDENT APPELLANT BY : SHRI DHAVAL SHAH (AR) RESPONDENT BY : SHRI AKHTAR H. ANSARI (DR) DATE OF HEARING : 27.09.2019 DATE OF PRONOUNCEMENT : 27.09.2019 ORDER UNDER SECTION 254(2)OF INCOME TAX ACT PER PAWAN SINGH, J.M. 1. THIS MISCELLANEOUS APPLICATION (MA) UNDER RULE 25 O F INCOME TAX (APPELLATE TRIBUNAL) RULES READ WITH SECTION 254(2) IS FILED B Y THE ASSESSEE FOR RECALLING THE ORDER DATED 16.01.2019 PASSED IN ITA NO. 3607/MUM/2 017 FOR ASSESSMENT YEAR (AY) 2007-08. IN THE APPLICATION, THE APPLICAN T/ASSESSEE HAS STATED THAT THE ASSESSEE WAS NOT SERVED BY THE NOTICE OF APPEAL AS THE ADDRESS OF THE APPLICANT/ASSESSEE HAS BEEN CHANGED. IN THE APPEAL FORM, THE REVENUE HAS MENTIONED OLD ADDRESS OF ASSESSEE BEING B-16, ROOPK AMAL, S.V. ROAD, KANDIVALI (W), MUMBAI THOUGH THE ADDRESS OF ASSESSE E IS CHANGED, NEW ADDRESS IS 601, SENATE, AURA BIPLEX, S.V. ROAD, BOR IVALI (W), MUMBAI-92. THE APPLICANT/ASSESSEE ONLY CAME TO KNOW ABOUT THE ORDER OF TRIBUNAL IN THE MONTH OF MARCH 2019, WHEN THE ASSESSING OFFICER REQ UIRED THE ASSESSEE TO APPEAR BEFORE HIM IN PURSUANT TO THE SET-ASIDE PROC EEDING. M.A. NO. M.A. NO. 428 MUM 2019-NIDHI PREMISES PVT. LTD. 2 2. THE LD. AR OF THE ASSESSEE MADE HIS SUBMISSION ON S IMILAR LINE. THE LD. AR OF THE ASSESSEE FURTHER SUBMITS THAT THE NON-APPEARANC E OF ASSESSEE, WHEN THE APPEAL CAME UP HEARING WAS NEITHER INTENTIONAL NOR DELIBERATE BUT DUE TO THE REASONS THAT THE ADDRESS OF ASSESSEE WAS CHANGED. T HE ASSESSEE HAS FILED RETURN OF INCOME FOR A.Y. 2016-17, 2017-18 SHOWING NEW ADDRESS OF THE ASSESSEE. THE ASSESSING OFFICER INTIMATED ABOUT THE ORDER OF TRIBUNAL AT THE NEW ADDRESS OF THE ASSESSEE. THE LD. AR SUBMITS THA T THE ASSESSEE HAS GOOD CASE ON MERIT AND WOULD SUFFER INJURY, IF THE ORDER IS NOT RECALLED. THE REVENUE WOULD NOT SUFFER IN THE EVENT, IF THEY HAVE ANY MER IT IN THEIR FAVOUR. 3. ON THE OTHER HAND, THE LD. SR. DR FOR THE REVENUE S UBMITS THAT NOTICE OF APPEAL WAS DIRECTED TO BE SERVED THROUGH LD. DR. THE NOTIC E WAS DULY SERVED ON THE ASSESSEE BY WAY OF AFFIXATION. A REPORT OF INSPECTO R WAS FURNISHED TO THE HONBLE BENCH. THE HONBLE BENCH AFTER CONSIDERING THE REPORT OF SERVICE OF NOTICE DECIDED TO ADJUDICATE THE APPEAL ON THE BASI S OF MATERIAL AVAILABLE ON RECORD. THE LD. DR FURTHER SUBMITS THAT ASSESSEE HA S NO CASE ON MERIT AND NO PURPOSE WOULD BE SERVED BY RECALLING THE ORDER. 4. WE HAVE CONSIDERED THE SUBMISSION OF BOTH THE PARTI ES AND PERUSED THE RECORD OF THE CASE. PERUSAL OF RECORD REVEALS THAT HEARING OF APPEAL WAS FIXED ON 28.11.2018. THE ASSESSEE WAS DIRECTED TO BE SERVED THROUGH LD. DR FOR THE REVENUE. PERUSAL OF RECORD FURTHER REVEALS THAT LD. DR FOR THE REVENUE FURNISHED REPORT OF INSPECTOR FROM OFFICE OF ITO-13 (1)(1), MUMBAI WHEREIN IT WAS REPORTED THAT INSPECTOR VISITED THE ADDRESS AT B-16, ROOPKAMAL, S.V. M.A. NO. M.A. NO. 428 MUM 2019-NIDHI PREMISES PVT. LTD. 3 ROAD, KANDIVALI (W), MUMBAI-67, HOWEVER, THE DOOR O F PREMISES WAS LOCKED, THE NOTICE OF HEARING WAS AFFIXED (PASTED). BEFORE US, THE LD. AR OF THE ASSESSEE VEHEMENTLY SUBMITTED THAT THE ASSESSEE WAS NOT SERVED WITH THE NOTICE AND THAT THEY WERE NOT AWARE ABOUT THE PENDE NCY OF APPEAL. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE FACT EXPLAINED BEFORE US BY LD. AR OF THE ASSESSEE THAT ASSESSEE W AS PREVENTED BY SUFFICIENT CAUSE IN NOT APPEARING WHEN THE CASE/APPEAL WAS TAK EN UP FOR HEARING. THEREFORE, WE FIND A SUFFICIENT CAUSE WITHIN THE ME ANING OF RULE 25 OF INCOME TAX (APPELLATE TRIBUNAL) RULES AND RECALLS T HE ORDER DATED 16.01.2019. AS WE HAVE RECALLED THE ORDER, HENCE, T HE HEARING OF APPEAL IS FIXED ON 14.11.2019 BY REGULAR BENCH; ISSUANCE OF N OTICE OF HEARING IS DISPENSED WITH AS THE DATE OF HEARING WAS FIXED IN THE PRESENCE OF PARTIES. 5. IN THE RESULT, MISC. APPLICATION FILED BY ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 27.09.2019. SD/- SD/- M.BALAGANESH PAWAN SINGH ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 27.09.2019 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR B BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR ITAT, MUMBAI