BHAVESH STEELS, MUMBAI V. INCOME TAX OFFICER 21(3)(1) , MUMBAI

MA 439/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5642 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 2011-2012
• Appeal Filed On: 21-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Reasonable cause

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B , MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER, AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER M.A. NO.437 TO 439/MUM/2018 (ITA NOS.2894 TO 2896/MUM/2016) ASSESSMENT YEARS: 2009-10 TO 2011-12 M/S BHAVESH STEELS, 101, SHREE YAMUNA APARTMENTS, MALAVIYA ROAD, VILE PARLE EAST, MUMBAI-400057 / VS. INCOME TAX OFFICER-21(3)(1), MUMBAI ( /ASSESSEE) ( / REVENUE) P.A. NO.AAHFB3103E / DATE OF HEARING : 03/05/2019 / DATE OF ORDER: 14/05/2019 / O R D E R PER G. MANJUNATHA (ACCOUNTANT MEMBER) THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICATI ON U/S 254(2) OF THE INCOME TAX ACT, 1961 AND REQUESTED TO RECALL ORDER PASSED BY THE ITAT, MUMBAI I BENCH IN ITA NOS.2894 TO 2896/MUM/2016 DATED 04/10/2017 FOR AYS 2009-10 TO 2011-12 2. THE ASSESSEE HAS NARRATED FACTS AND MISTAKES ST ATED TO BE APPARENT FROM THE ORDER OF THE ITAT, MUMBAI, DATED 30/11/201 7 IN ITA NO.86/MUM/2016. THE / ASSESSEE BY SHRI JAYANT BHATT / REVENUE BY SHRI CHOUDHARY ARUN KUMAR - DR 2 MA NO.437 TO 439 /MUM/2018 RELEVANT CONTENTS OF THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE FOR AY 2009- 10 ARE REPRODUCED HEREUNDER:- 1. THIS APPEAL WAS FILED BY THE ASSESSEE ON 20TH AP RIL 2016 AGAINST THE ORDER OF THE LEARNED CIT(A)37, MURNBAI DATED 29 TH JANUARY 2016 IN RELATION TO ASSESSMENT ORDER PASSED UNDER SECTION 1 43(3) R.W.S 147 FOR THE ASSESSMENT YEAR 2009-10. THIS APPEAL WAS POSTED FOR HEARING FOR THE FIRST TI ME ON IS' AUGUST 2017 AND THE SAME WAS ADJOURNED TO 30'HAUGUST 2017 AND L ATER IT WAS ADJOURNED TO 4TH OCTOBER 2017.THESE APPEAL WAS SUBM ITTED THROUGH OUR AUTHORISED REPRESENTATIVE CA UMESH GOSAR & CA VIRAL DOSHI. WHEN WE HAVE RECEIVED THE NOTICE FOR HEARING POSTED ON 1ST AUGUST 2017 WE HAD GIVEN THE NOTICE TO OUR AR TO ATTEND THE CASE. WE WOULD LIKE TO STATE THAT DURING THE PERIOD FROM JUNE 2017 ONWARDS WE WERE UNDER TREMENDOUS PRESSURE ON ACCOUNT OF FINANC IAL CRISIS AND OUR ACCOUNT HAS ALSO BEEN DESIGNATED UNDER THE CATEGORY OF NPA. FURTHER BANKER'S HAVE ALSO TAKEN ACTION UNDER DRT AND HAS A TTACHED ALL OUR ACCOUNTS AND SECURITIES OFFERED. UNDER SUCH CIRCUMS TANCES WE WERE UNABLE TO MEET ANY OF OUR FINANCIAL OBLIGATION INCL UDING PAYMENT OF OUR PROFESSIONAL FEES. FURTHER DUE TO HUGE LOSSES THERE WERE DISPUTE AMONGST THE PARTNERS AND THEREFORE OUR POSITION BECAME BAD TO WORSE EVEN AS OF DATE WE ARE FACING THE CASE UNDER DRT WHERE THE BAN KER'S HAVE ATTACHED OUR RESIDENTIAL PROPERTY APART FROM THE PRINCIPAL S ECURITIES AND OUR BUSINESS IS TOTALLY SHUT DOWN. IT IS IN THESE CIRCU MSTANCES WE ARE STRUGGLING FOR EVEN OUR ROUTINE BREAD AND BUTTER AN D UNDER SUCH CIRCUMSTANCES WE PRESUME OUR AR WOULD NOT HAVE ATTE NDED THE HEARING, SINCE WE COULD NOT PAY THEM AND THEREFORE THE APPEA L HAS BEEN DECIDED EX-PARTE. THUS DUE TO SUCH CIRCUMSTANCES BEYOND OUR CONTROL T HE HEARING COULD NOT BE ATTENDED AND CONSEQUENTLY THE APPEAL IS DISMISSE D FOR WANT OF ATTENDANCE/PROSECUTION UNDER THE CIRCUMSTANCES. WE REQUEST YOUR HONOUR TO RECALL THE ORDER AND GRANT US THE OPPORTU NITY OF BEING HEARD. WE WILL BE HIGHLY OBLIGED IF OUR PRAYER IS ACCEDED TO. YOUR SYMPATHETIC AND CONSIDERATE APPROACH IS SOLICI TED AND AT THE COST OF REPETITION ONCE AGAIN REQUEST YOUR HONOUR TO ALLOW THE OPPORTUNITY TO REPRESENT THE CASE AND MAY RECALL THE ORDER AS REFE RRED TO HEREIN ABOVE. IF WE ARE GIVEN AN OPPORTUNITY WE ASSURE YOUR HONOUR T HAT WE WOULD SUBMIT ALL THE REQUISITE DETAILS AND WOULD ATTEND THE HEAR ING AND CO-OPERATE IN ALL REGARDS. 3 MA NO.437 TO 439 /MUM/2018 3. THE LD. AR FOR THE ASSESSEE SUBMITTED THAT THE T RIBUNAL HAS DECIDED APPEALS FILED BY THE ASSESSEE EX-PARTE FOR NON-APPEARANCE A S ON DATE OF HEARING I.E. 04/10/2017. THE LD. AR FOR THE ASSESSEE, FURTHER SU BMITTED THAT THE ASSESSEE COULD NOT ATTEND THE HEARING ON THE DATE FIXED FOR DISPOS E OF THE APPEAL BECAUSE THE COUNSEL FOR THE ASSESSEE REFUSED TO ATTEND ON BEHALF OF THE ASSESSEE FOR NON-PAYMENT OF PROFESSIONAL FEES. THE LD. AR ALSO EXPLAINED THE RE ASON FOR NON-PAYMENT OF PROFESSIONAL FEES TO COUNSELS. AS PER PLEADING OF L D. COUNSEL FOR THE ASSESSEE, THE ASSESSEE IS UNDER HUGE LOSS AND ITS BANK ACCOUNT BE COME NPA, THEREFORE, UNDER THESE FACTS AND CIRCUMSTANCES IT COULD NOT EVEN PAY PROFESSIONAL FEES TO PROFESSIONAL WHO HANDLED THE TAX MATTER. THEREFORE, THERE IS REA SONABLE CAUSE FOR NOT ATTENDING OF HEARING AND HENCE EX-PARTE ORDER PASSED BY THE TRIB UNAL BACK OF THE ASSESSEE MAY BE RECALLED IN THE INTEREST OF JUSTICE AND ALSO TO GIVE FAIR HEARING TO THE ASSESSEE TO JUSTIFY ITS CLAIM ON MERIT. 4. THE LD. DR, ON THE OTHER HAND, SUBMITTED THAT TH E ASSESSEE HAS FAILED TO MAKE OUT A CASE OF MISTAKES APPARENT ON RECORD IN THE OR DER OF THE TRIBUNAL AND WHAT THE ASSESSEES COUNSEL SEEKS IS RECALLING THE ORDER FOR NON-PROSECUTION OF APPEAL BY THE ASSESSEE WHICH IS NOT PERMISSIBLE U/S 254(2) OF THE ACT. THEREFORE, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE MAY BE DISMISSED. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ISCELLANEOUS APPLICATION FILED BY THE ASSESSEE ALONG WITH ORDER OF THE TRIBU NAL IN ITA NO.2894 TO 2896/MUM/2016, DATED 04/10/2017, FOR AYS 2009-10 TO 2011-12. WE FIND THAT THE TRIBUNAL HAS DISPOSED OF APPEAL FILED BY THE ASSESS EE FOR ALL ASSESSMENT YEARS EX- 4 MA NO.437 TO 439 /MUM/2018 PARTE BECAUSE THE ASSESSEE COULD NOT ATTEND THE HEA RING ON THE DATES SPECIFIED FOR HEARING. THE ASSESSEE HAS EXPLAINED THE REASONS FOR NOT ATTENDING ON THE DATES SPECIFIED FOR HEARING. ON PERUSAL OF REASONS GIVEN BY THE ASSESSEE FOR NON-ATTENDING THE HEARING BEFORE THE TRIBUNAL, WE FIND THAT THERE IS REASONABLE CAUSE FOR NOT ATTENDING DUE TO TREMENDOUS FINANCIAL HARDSHIP CAUS ED TO THE ASSESSEE BECAUSE OF LOSSES IN BUSINESS AND ALSO ATTACHMENT OF BANK ACCO UNT OF THE ASSESSEE FOR NON- PAYMENT OF LOAN. THEREFORE, CONSIDERING OVERALL FAC TS AND CIRCUMSTANCES AND ALSO KEEPING IN MIND PRINCIPLE OF NATURAL JUSTICE, WE DE EM IT APPROPRIATE TO RECALL THE ORDER OF THE TRIBUNAL TO GIVE ONE MORE OPPORTUNITY OF HEA RING TO THE ASSESSEE TO REPRESENT ITS CASE ON MERITS. HENCE, WE RECALLED THE ORDER PASSED BY THE TRIBUNAL IN ITA NO.2894 TO 2896/MUM/2016 FOR AY 2009-10 TO 2011-12. THE REG ISTRY IS DIRECTED TO FIX THE APPEAL FOR HEARING IN DUE COURSE. 6. IN THE RESULT, MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14/05/2019. SD/- SD/- ( MAHAVIR SINGH ) (G. MANJUNATHA) ! ' /JUDICIAL MEMBER # ' / ACCOUNTANT MEMBER MUMBAI; DATED : 14/05/2019 F{X~{T? F{X~{T? F{X~{T? F{X~{T? P.S P.S P.S P.S / /. /./. /. !.. %!&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT (RESPECTIVE ASSESSEE) 2. !'# / THE RESPONDENT. 3. $# $# % ( ) / THE CIT, MUMBAI. 4. $# $# % / CIT(A)- , MUMBAI, 5. '()# ! * , $# # * , , / DR, ITAT, MUMBAI 5 MA NO.437 TO 439 /MUM/2018 6. )- . / GUARD FILE. / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI