SURYADARSHAN CO OP HSG SOC LTD, V. ITO WD 16(1)(2),

MA 438/MUM/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9463 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2000-2001
• Appeal Filed On: 03-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A B KOLI
• Assessee Lawyers: T K DOCTOR; JGNESH R SHAH
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH F BENCH BEFORE SHRI B.R.MITTAL(JUDICIAL MEMBER) AND SHRI N.K.BILLAIYA (ACCOUNTANT MEMBER) M.A.NO.438/MUM/2012 (ARISING OUT OF ITA NO.4955/MUM/2005) ASSESSMENT YEAR: 2000-01 SURYADARSHAN CO.OP.HSG. SOC. LTD., 44/50, WALKESHWAR ROAD, WALKESHWAR, MUMBAI-400 006 PA NO.AAAAS 5676 B ITO 16(1)(2), MUMBAI. (APPELLANT) VS. (RESPONDENT) APPELLANT BY : SHRI JGNESH R SHAH & T.K.DOCTOR RESPONDENT BY: SHRI A.B.KOLI DATE OF HEARING: 9.11.2012 DATE OF PRONOUNCEMENT: 21. 11.2012 ORDER PER B.R.MITTAL, JM: BY THIS MISCELLANEOUS APPLICATION DT. 3.7.2012 UNDE R SECTION 254(2) OF THE ACT, THE ASSESSEE HAS PRAYED TO RECALL EXPARTE ORDER DA TED 7.7.2008 PASSED BY THE TRIBUNAL IN I.T.A. NO.4955/M/2005 FOR ASSESSMENT YEAR 2000-2 001. 2. WE HAVE HEARD LD REPRESENTATIVES OF PARTIES AND HAVE CAREFULLY CONSIDERED THE APPLICATION OF ASSESSEE AS WELL AS MATERIAL PLACED ON RECORD. 3. WE OBSERVE THAT THE APPEAL WAS FIXED FOR HEARING ON 4.2.2008 AND AT THE REQUEST OF THE ASSESSEES REPRESENTATIVE, IT WAS ADJOURNED TO 6.5.2008. ON 6.5.2008 AGAIN APPEAL FILED BY THE ASSESSEE WAS ADJOURNED TO 2.7.2 008 AT THE REQUEST OF ASSESSEES REPRESENTATIVE. ON PERUSAL OF LETTER PLACED IN FIL E, IT IS OBSERVED THAT LD A.R. OF THE ASSESSEE NOTED THE ADJOURNMENT DATE TO 2.7.2008. I T IS OBSERVED THAT NO ONE WAS PRESENT ON BEHALF OF ASSESSEE ON THE DATE FIXED FOR HEARING I.E. 2.7.2008 NOR THERE WAS ANY APPLICATION FOR ADJOURNMENT. ACCORDINGLY, THE TRIBUNAL STATED THAT ASSESSEE IS NOT M.A.NO.438/MUM/2012 (ARISING OUT OF ITA NO.4955/MUM/2005) ASSESSMENT YEAR: 2000-01 2 INTERESTED IN PROSECUTING THE APPEAL AND DISMISSED THE APPEAL OF ASSESSEE VIDE ORDER DATED 7.7.2008. ASSESSEE BY THIS APPLICATION DATED 3.7.2012 HAS STATED THAT ASSESSEE WAS TOTALLY UNAWARE TILL JUNE, 2012 THAT THE APPEAL WAS DISMISSED. IT IS STATED THAT LD A.R. OF THE ASSESSEE DID NOT INFORM THE ASSESSEE. 4. AT THE TIME OF HEARING, LD A.R. REITERATED THE F ACTS THAT LD A.R. OF THE ASSESSEE KEPT THE ASSESSEE IN DARK AND DID NOT INFORM THAT T HE APPEAL OF ASSESSEE HAD BEEN DISMISSED EXPARTE. LD A.R. SUBMITTED THAT ON THE O THER HAND, THEN LD A.R. INFORMED THE ASSESSEE THAT HE APPEARED BEFORE THE TRIBUNAL AND T HE APPEAL WAS ADJOURNED. HE SUBMITTED THAT EXPARTE ORDER HAS BEEN PASSED DUE TO MISREPRESENTATION OF THEN LD A.R. OF THE ASSESSEE MR MITESH MEHTA AND ASSESSEE SHOULD NOT SUFFER. LD A.R. OF ASSESSEE REFERRED THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF RAINBOW AGRI INDUSTRIES LTD(FORMERLY RAINBOW MERCANTILE P.LTD ) VS. ITAT AND OTHERS, 266 ITR 38(BOM) AND SUBMITTED THAT IF A PARTY IS UNAWARE OF THE DATE OF HEARING AND THE UNAWARENESS IS NOT DUE TO ANY FAULT OF THE ASSESSEE , THEN IT SHOULD BE CONSIDERED AS SUFFICIENT CAUSE WHICH WOULD PREVENT A PARTY FROM A PPEARING IN THE COURT AND THE ORDER PASSED BY THE TRIBUNAL BE RECALLED. HOWEVER, LD D. R. SUBMITTED THT ASSESSEE WAS NOT VIGILANT AND APPLICATION HAS ALSO BEEN FILED AFTER ABOUT 4 YEARS. THEREFORE, THERE IS NO REASONABLE CAUSE FOR NON-APPEARANCE. 5. WE HAVE CONSIDERED SUBMISSIONS OF LD REPRESENTA TIVES OF PARTIES AND ADJOURNMENT APPLICATIONS FILED EARLIER AS ALSO ORDE R OF ITAT DT.7.7.2008. WE HAVE ALSO CONSIDERED THE DECISION OF HONBLE BOMBAY HIGH COUR T IN THE CASE OF RAINBOW AGRI INDUSTRIES LTD (SUPRA) RELIED BY LD A.R. OF ASSESSE E. WE OBSERVE THAT THE FACTS OF THE SAID CASE ARE NOT APPLICABLE TO THE FACTS OF ASSESS EE BEFORE US. IN THE SAID CASE, THE REASON OF ABSENCE HAD BEEN SUFFICIENTLY EXPLAINED AS THERE WAS A MISTAKE OF A TYPIST DUE TO WHICH, ASSESSEE COULD NOT RECEIVE THE NOTICE OF HEARING OF APPEAL ISSUED BY THE TRIBUNAL AND, ACCORDINGLY, THE PETITIONER COULD NOT APPEAR BEFORE THE TRIBUNAL WHEN THE APPEAL WAS CALLED OUT FOR FINAL HEARING. IN THE CA SE BEFORE US, WE OBSERVE THAT THE CASE WAS SPECIFICALLY ADJOURNED AT THE REQUEST OF THEN L D A.R. FOR 2.7.2008 AND THE SAID DATE WAS ALSO NOTED BY HIM AS PER LETTER PLACED IN FILE. WE ALSO OBSERVE THAT CONSIDERABLE M.A.NO.438/MUM/2012 (ARISING OUT OF ITA NO.4955/MUM/2005) ASSESSMENT YEAR: 2000-01 3 PERIOD APPROXIMATELY FOUR YEARS HAVE PASSED FROM TH E DATE OF ORDER PASSED BY THE TRIBUNAL DISMISSING THE APPEAL OF ASSESSEE AND APPL ICATION FOR RECALLING THE SAID ORDER IS FILED BY ASSESSEE. DURING THE COURSE OF HEARING, L D A,.R. SUBMITTED THAT ASSESSEE WAS NOT AWARE OF SUCH ORDER PASSED BY THE TRIBUNAL. BE THAT AS IT MAY, WE OBSERVE THAT ASSESSEE ALSO DID NOT FOLLOW UP THE MATTER PROPERLY & AS SUCH WAS NEGLIGENT IN ASCERTAINING OUTCOME OF APPEAL. 6. HOWEVER, CONSIDERING THE FACTS OF THE CASE AND SUBMISSION OF LD A.R., WE, IN THE INTEREST OF JUSTICE, RECALL THE EXPARTE ORDER DT.7. 7.2008 PASSED BY THE TRIBUNAL SUBJECT TO PAYMENT OF COST OF RS.5000/- (RUPEES FIVE THOUSAND ONLY) BY THE ASSESSEE. 7. HENCE, THE ORDER OF ITAT DT.7.7.2008 IS RECALLED SUBJECT TO PAYMENT OF RS.5,000/- (RUPEES FIVE THOUSANDS ONLY) AND REGISTR Y IS DIRECTED TO FIX APPEAL FOR HEARING AFTER GIVING NOTICE TO THE PARTIES. 8. IN THE RESULT, M.A. FILED BY ASSESSEE IS ALLOWED SUBJECT TO PAYMENT OF COST OF RS.5000/-(RUPEES FIVE THOUSANDS ONLY). PRONOUNCED IN THE OPEN COURT ON 21 ST NOVEMBER, 2012 SD/- (N.K.BILLAIYA) ACCOUNTANT MEMBER SD/- (B.R. MITTAL) JUDICIAL MEMBER MUMBAI, DATED 21 ST NOVEMBER, 2012 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS),XVI, MUMBA I 4. COMMISSIONER OF INCOME TAX, XVI , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH F MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI