CHANDAN RALTORS P LTD., MUMBAI V. ITO-14(1)(1), MUMBAI

MA 431/MUM/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 6768 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-10-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 05-10-2023
• Assessment Year: 2010-2011
• Appeal Filed On: 12-06-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: KIRITH SHETH
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH “SMC”, MUMBAI SHRI KULDIP SINGH, JUDICIAL MEMBER MA No. 431/M/2023 (Arising out of ITA No.761/M/2021) Assessment Year: 2010 & 11 M/s. Chandan Realtors Pvt. Ltd., 102, Parekh Building, N.G. Acharya Marg, Chembur, Mumbai- 400 071 PAN: AACCC1129M Vs. Income Tax Officer- 14(1)(1), Room No 431, Aayakar Bhavan, M.K. Marg, Mumbai- 400 020 (Appellant) (Respondent) Present for: Assessee by : Shri Kirith Sheth, A.R. Revenue by : Shri Anil Sant, Sr. AR Date of Hearing : 06 . 10 . 2023 Date of Pronouncement : 06 . 10 . 2023 O R D E R Per : Kuldip Singh, Judicial Member: Heard: Applicant M/s. Chandan Realtors Pvt. Ltd. (hereinafter referred to as the assessee) by filing miscellaneous application under section 254(2) of the Income Tax Act, 1961 (for short ‘the Act’) sought to rectify the mistake apparent on record by recalling the order dated 23.01.2023 passed by the Tribunal in ITA No.761/M/2021 for A.Y. 2010-11 on the grounds inter-alia that ground No.2 & 3 raised by the assessee in revised form 36 have not been adjudicated upon; that the assessee has not been provided with an opportunity of being heard as the appeal has been decided MA No. 431/M/2023 (Arising out of ITA No.761/M/2021) M/s. Chandan Realtors Pvt. Ltd. 2 ex-parte; that application seeking adjournment filed by the applicant was not considered and the case was heard ex-parte. 2. However, on the other hand, the Ld. D.R. for the Revenue in order to repel the arguments addressed by the Ld. A.R. for the assessee relied upon the order passed by the AO as well as the Ld. CIT(A). 3. I have perused the order dated 23.01.2023 passed by the Tribunal in ITA No.761/M/2021 for A.Y. 2010-11 in case titled as M/s. Chandan Realtors Pvt. Ltd. vs. ITO, wherein the assessee is shown to be represented by Shri Kirit Sheth, A.R., but it is a factual error in the face of para 5 of the order (supra) which is extracted as under: “5. This appeal was filed on 10.05.2021. Thereafter numerous notices were given to the assessee who put in appearance through its authorised representative on 14.02.2022, 08.03.2022, 28.04.2022, 04.07.2022 & 24.08.2022 but thereafter none appeared on behalf of the assessee. It appears that the assessee is not interested in prosecuting the present appeal. So the Bench has decided to dispose of the same on the basis of the material available on record with the assistance of the Ld. D.R. for the Revenue.” 4. Further it is noticed that the specific ground Nos.2 & 3 raised by the assessee in its appeal remained unadjudicated which is a mistake apparent on record. Moreover the assessee has not been represented in the appeal as per para 5 extracted in the preceding para. No doubt the assessee was given ample opportunities to argue in the appeal as recorded in para 5 of the order but in the interest of justice and in the face of the fact that ground Nos.2 & 3 remained to be unadjudicated, adequate opportunity is required to be given to the assessee to advance the cause of justice. MA No. 431/M/2023 (Arising out of ITA No.761/M/2021) M/s. Chandan Realtors Pvt. Ltd. 3 5. So in view of the matter miscellaneous application filed by the applicant is allowed by setting aside the order (supra) and consequently the appeal bearing ITA No.761/M/2021 is ordered to be listed for fresh hearing in due course. Order pronounced in the open court on 06.10.2023. Sd/- (KULDIP SINGH) JUDICIAL MEMBER Mumbai, Dated: 06.10.2023. * Kishor Sr.PS Copy to: The Appellant The Respondent The CIT, Concerned, Mumbai The DR Concerned Bench //True Copy// By Order Dy/Asstt. Registrar, ITAT, Mumbai.