RAMSHANKAR B. KABRA, HUF, MUMBAI V. INCOME TAX OFFICER-31(3)(1), MUMBAI

MA 445/MUM/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8745 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 25-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V VIDHYADHAR
• Assessee Lawyers: DAMODAR KABRA
• Keywords: Principle of natural justice

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE HONBLE SH. B. R. BASKARAN , AM AND HONBLE SH . SANDEEP GOSAIN, JM M .A. NO . 445 /MUM/2018 (IN ITA NO.6058 /MUM/2017 ) ( / ASSESSMENT YEAR: 2009 - 10 ) M/S RAMSHANKAR B. KABRA (HU F), TOWER NO. 4, FLAT NO. 401, RUSTOMJEE OZONE, OFF - GOREGAON MULUND LINK ROAD, GOREGAON(W), MUMBAI - 400 062 / VS. ITO - 31(3)(1), BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI - 400 012 ./ ./ PAN/GIR NO. AA KHR0502G ( / APPE LLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI DAMODAR KABRA , AR / RESPONDENT BY : SHRI V. VIDHYADHAR , DR / DATE OF HEARING : 30.11 .201 8 / DATE OF PRONOUNCEMENT : 20/12/2018 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE PRESENT MISCELLANEOUS APPLICATION H AS BE EN MOVED BY ASSESSEE FOR RESTORING THE EX P ARTE APPEAL BEARING ITA NO. 6058 /MUM/2017 FOR AY 2009 - 10 AND PROVIDING OPPORTUNITY OF HEARING TO THE ASSESSEE. 2 M A NO. 445 /MUM/2018 M/S RAMSHANKAR B. KABRA (HUF) 2. TH E LD AR APPEARING ON BEHALF OF THE ASSESSEE DR AWN OUR ATTENTION TOWARDS APPLICATION DATED 25.06 .18 THEREBY STATING THAT DUE TO UNFORESEEN C IRCUMSTANCES, THE ASSESSEE OR HIS AUTHORIZED REPRESENTATIVE COULD NOT APPEARED BEFORE THE HONBLE ITAT AND THE ASSESS EE WOULD DEFINITELY LIKE TO PURSUE THE MATTER AND WOULD LIKE TO CONTEST THE SAID APPEAL. 3. AFTER HEARING THE COUNSEL S FOR BOTH THE PARTIES AND PERUSAL OF THE MATERIAL PLACED ON RECORD . WE ARE OF THE VIEW THAT IT WAS THE BOUNDED DUTY OF THE ASSESSEE OR H IS COUNSEL TO APPEAR BEFORE THE TRIBUNAL IN COMPLIANCE OF THE NOTICE RECEIVED BY HIM. THE ASSESSEE HAS NOT ACTED WITH DUE DILIGENCE. NEVERTHELESS T HE P RINCIPLES OF NATURAL JUSTICE DEMANDS THAT THE LIS BETWEEN THE PARTIES SHOULD BE DECIDED ON MERITS AFTER P ROVIDING DUE OPPORTUNITY OF HEARING TO BOTH THE PARTIES . ALTHOUGH IN THE PRESENT CASE ADEQUATE OPPORTUNITY OF HEARING T O BOTH THE PARTIES WAS GIVEN BUT STILL THE ASSESSEE HAS NOT APPEARED AND HAS NOW RAISED A PLEA THAT BECAUSE OF THE REASONS STATED IN THE APPLICATION THE ASSESSEE OR HIS ADVOCATE COULD NOT APPEAR AND THERE WAS NO MALAFID E INTENTION OR DELIBERATE DEFAULT ON THE PART OF THE ASSESSEE OR HIS ADVOCATE . 4 . BE THAT AS IT MAY, C ONSIDERING THE FACT S AND CIRCU MSTANCES OF THE PRESENT CASE , WE ARE OF T HE CONSIDERED VIEW THAT THE ENDS OF JUSTICE WOULD BE MET ONLY WHEN WE PROVIDE ONE MORE OPPORTUNITY OF HEARING TO THE ASSESSEE FOR CONTESTING 3 M A NO. 445 /MUM/2018 M/S RAMSHANKAR B. KABRA (HUF) THE APPEAL ON MERITS . IN OUR VIEW, IF THIS M.A. IS ALLOWED, NO PREJUDICE WOULD BE CAUSED TO THE INTEREST OF REVENUE AS LEGITIMATE TAXES DUE ON THE ASSESSEES CORRECT INCOME WILL BE COLLECTED . WHEREAS, IF THE CONTRARY VIEW IS TAKEN THEN IN THAT EVENTUALITY THE ASSESSEE MAY BE PUT TO GREAT HARDSHIP AND DIFFICULTY. T HEREFORE , KEEPING IN VIEW THE ABOVE DISCUSSION, WE RECAL L THE EX - PARTE ORDER IN ITA NO. 6058 /MUM/2017 DATED 30.01.18 AND RESTORE THE A PPEAL FOR HEARING ON MERITS BY THE REGULAR BENCH. REGISTRY IS DIRECTED TO FIX THE PRESENT APPEAL BEFORE REGULAR BENCH AND ISSUE NOTICES TO BOTH THE PARTIES FOR HEARING. 5 . IN T HE NET RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE STANDS ALLOWED IN TERMS INDICATED ABOVE . ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH DEC , 2018. SD/ - SD/ - ( B. R. BASKARAN ) (SANDE EP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 20 .12 .18 SR.PS D HANANJAY 4 M A NO. 445 /MUM/2018 M/S RAMSHANKAR B. KABRA (HUF) / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI