UMIYA CONSTRUCTION, V. ASST CIT 25(3),

MA 46/MUM/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3776 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-12-2015
• Appeal Filed By: Assessee
• Bench Allotted: F
• Assessment Year: 2007-2008
• Appeal Filed On: 24-02-2015
• Court: TRIBUNAL
• Assessee Lawyers: B S BIST M A NOS; MUM ARISING OUT OF

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER M.A. NO.46/MUM/2015 (ARISING OUT OF ITA NO.6415/MUM /2010) ASSESSMENT YEAR: 2007-08 M/S. UMIYA CONSTRUCTION 2B, GOPAL KUNJ S.N. ROAD, KANDIVALI(W) MUMBAI-400 067. / VS. THE ACIT -25(3) C-11, R.NO.308 BANDRA KURLA COMPLEX, BANDRA (E) MUMBAI. ( / APPELLANT) ( !' / RESPONDENT) P.A. NO.AAAFU 1010 A M.A. NO.43/MUM/2015 (ARISING OUT OF C.O. NO.93/MUM/2013 (ARISING OUT OF ITA NO.6415/MUM/2010) ASSESSMENT YEAR: 2007-08 M/S. UMIYA CONSTRUCTION 2B, GOPAL KUNJ S.N. ROAD, KANDIVALI(W) MUMBAI-400 067. / VS. THE ACIT -25(3) C-11, R.NO.308 BANDRA KURLA COMPLEX, BANDRA (E) MUMBAI. ( / APPELLANT) ( !' / RESPONDENT) P.A. NO.AAAFU 1010 A /DEPARTMENT BY : SHRI MAYUR KISNADWALA !' /ASSESSEE BY : SHRI B.S.BIST M.A. NOS43 & 46/MUM/2015 (ARISING OUT OF ITA NO.6415/MUM/10 & CO 93/MUM/13) UMIYA CONSTRUCTION 2 # $%& ' () / DATE OF HEARING : 16/10/2015 ' () / DATE OF ORDER: 09/12/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) : BOTH THESE MISCELLANEOUS PETITIONS ARE BY THE ASSE SSEE SEEKING RECTIFICATION/RECALLING OF THE ORDER OF THE TRIBUNAL DATED 26/11/2014 ON THE GROUNDS AS STATED THEREIN. 2. DURING HEARING OF THESE PETITIONS, THE LD. COUNS EL FOR THE ASSESSEE, SHRI MAYUR KISHNADWALA, DID NOT PRESS M.A. NO.46/MUM/2015 (ARISING OUT OF ITA NO.6415/MUM/2010 ), THEREFORE, THE SAME IS DISMISSED AS NOT PRESSED. 3. NOW, WE SHALL TAKE UP M.A. NO.43/MUM/2015 (ARISI NG OUT OF C.O. NO.93/MUM/2013). THE CRUX OF ARGUMENT O N BEHALF OF THE ASSESSEE IS THAT THERE WAS CHANGE IN THE ADDRES S OF THE ASSESSEE, THEREFORE, NOTICE OF HEARING WAS NOT RECE IVED. SUBSEQUENTLY, VIDE LETTER DATED 28/08/2012, SERVED UPON THE ASSESSEE ON 12/10/2012, THE REVENUE INTIMATED THE A SSESSEE THAT THE NEXT DATE OF HEARING IS 16/10/2012. THE ASSESSE E FILED A LETTER DATED 13/10/2012 WITH THE OFFICE OF THE CIT-DR INTI MATING THEM ABOUT THE CHANGE OF THE ADDRESS OF THE ASSESSEE. TH E BENCH DID NOT FUNCTION ON 16/10/2012 AND ON 04/04/2013, THE A SSESSEE DREW THE ATTENTION OF THE BENCH THAT PURSUANT TO RU LE-9A OF THE ITAT (AMENDMENT) RULES, 2012, THE REVENUE IS REQUIR ED TO FILE A REVISED FORM NO. 36, INCORPORATING THEREIN, THE CHA NGE IN THE ADDRESS OF THE ASSESSEE AND, ACCORDINGLY, THE BENCH DIRECTED THE REVENUE TO DO SO. ON SUBSEQUENT HEARINGS, INCLUDING M.A. NOS43 & 46/MUM/2015 (ARISING OUT OF ITA NO.6415/MUM/10 & CO 93/MUM/13) UMIYA CONSTRUCTION 3 26/06/2012, THE BENCH DIRECTED THE REVENUE TO FILE FRESH FORM NO. 36 AND, THUS, THE APPEAL WAS ADJOURNED TO 04/0 9/2013 ON WHICH DATE ALSO THE BENCH DID NOT FUNCTION. THE AP PEAL WAS ADJOURNED TO 24/11/2014. AS PER THE LD. COUNSEL FOR THE ASSESSEE, WHILE NOTING THE DATE, INADVERTENTLY, THE DATE WAS RECORDED AS 24/12/2014 INSTEAD OF 24/11/2014. CONSEQUENTLY, ON THAT DATE NO ONE REPRESENTED THE ASSESSEE AND THE APPEAL WAS DISPOSED OFF EX-PARTE QUA THE ASSESSEE. THE CRUX OF ARGUMENT IS THAT NONE APPEARANCE ON BEHALF OF THE ASSESSEE WAS UNINTENTIO NAL. 3.1. ON THE OTHER HAND, THE LD. DR. SHRI B.S. BIST, CONTENDED THAT THERE WAS A DELIBERATE ATTEMPT ON BE HALF OF THE ASSESSEE TO DELAY THE PROCEEDINGS AND IT IS MERELY A LAME EXCUSE AS HAS BEEN EXPLAINED ABOVE. 3.2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE MATERIAL AVAILABLE ON RECORD. AT THE SAME TIME, IT IS OBSERVED THAT NO SUCH EVIDENCE WAS PRODUCED BY THE ASSESSEE THAT WRONG DATE WAS NOTED BY THE LD. COUNSEL. HOWEVER, BY TAKI NG A LENIENT VIEW ON THE PRINCIPLE THAT NO PERSON SHOULD BE COND EMNED UNHEARD, WE RECALL THE ORDER OF THE TRIBUNAL DATED 26/11/2012 TAKEN IN C.O. NO.93/MUM/2013 (ARISING OUT OF ITA NO.6415/MUM/2010). EVEN OTHERWISE, NO PERSON SHOUL D FELT AGGRIEVED FOR THE FAULT/MISTAKE OF THE COUNSEL. OUR VIEW FIND SUPPORTS FROM THE DECISION IN THE CASE OF MD. JAVED VS ITO IN ITA NO. 131/IND/2013, ORDER DATED 27/06/2013, THE RAT IO LAID DOWN IN IMPROVEMENT TRUST LUDHIANA VS UJAGAR SINGH & ORS . (CIVIL APPEAL NOS.2395 AND 2397 OF 2008) ORDER DATED 09/06 /2010 BY THE HONBLE APEX COURT, CIT VS ANSAL HOUSING AND CO NSTRUCTION M.A. NOS43 & 46/MUM/2015 (ARISING OUT OF ITA NO.6415/MUM/10 & CO 93/MUM/13) UMIYA CONSTRUCTION 4 (2004) 274 ITR 131 (DELHI-HC), SMT LATA D SHAH VS I TO IN ITA NO.3804/MUM/2009), SUPREME INDUSTRIES LTD. VS ADDL. CIT W.P. NO.2548 OF 2014 (BOM-HC), CHEMIPOL VS UOI (CENTRAL EXCISE APPEAL NO.62 OF 2009) (BOM-HC), SMT. SHEFALI GODH A VS ITO (ITA NO.550/IND/2009) ORDER DATED 15/02/2010 AND VIPUL C HATTAR (ITA NO.146/IND/2013) ORDER DATED 03/06/2013, THOUG H ON THE ISSUE OF WRONG LEGAL ADVICE BY THE COUNSEL, WE ARE OF THE VIEW, THAT WHEN TECHNICALITIES ARE PITTED AGAINST THE SUBSTANT IAL CAUSE OF JUSTICE NORMALLY, THE CAUSE OF JUSTICE MAY BE GIVEN PRECEDENCE OVER TECHNICALITIES. REGISTRY OF THIS TRIBUNAL IS DIRECTED TO FIX AFORESAID CROSS OBJECTION FOR FRESH HEARING ON ANY CONVENIENT DATE BEFORE ANY BENCH. AT THE SAME TIME, WE MENTION HERE THAT THE ANY BENCH WHICH WILL HEAR THE C.O. NO.93/MUM/2013 WILL TAKE A DECISION PURELY ON MERIT IN ACCORDANCE WITH LAW UN INFLUENCED BY THE ORDER PASSED ON 26/11/2014 SO THAT NO GRIEVANCE IS CAUSED TO EITHER SIDE. THUS, BY TAKING A LENIENT VIEW, THIS M ISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. FINALLY, M.A. NO.46/MUM/2015 (ARISING OUT OF ITA NO.6415/MUM/2010) IS DISMISSED AS NOT PRESSED, WHER EAS, M.A. NO.43/MUM/2015 (ARISING OUT OF C.O. NO.93/MUM/2013) IS ALLOWED. THIS ORDER WAS PRONOUNCED ON 09/12/2015 SD/- SD/- (SANJAY ARORA) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER # & MUMBAI; +$ DATED : 09/12/2015 F{X~{T? P.S/. $. . M.A. NOS43 & 46/MUM/2015 (ARISING OUT OF ITA NO.6415/MUM/10 & CO 93/MUM/13) UMIYA CONSTRUCTION 5 %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT. 3. - - # .( ( ) / THE CIT, MUMBAI. 4. - - # .( / CIT(A)-.,MUMBAI 5. 1%2 !($3 , - ) 34 , # & / DR, ITAT, MUMBAI 6. 6 7& / GUARD FILE. / BY ORDER, '1( !( //TRUE COPY// / (DY./ASSTT. REGISTRAR) , # & / ITAT, MUMBAI.