PRATHMAESH DREAM PROPERTIES PRIVATE LIMITED , MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 1, THANE

MA 472/MUM/2018

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 2873 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 05-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 153A; 254(2); 132

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C , MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER, AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER M.A. NO.472/MUM/2018 (ARISING OUT OF ITA NO.86/MUM/2016) ASSESSMENT YEAR: 2009-10 PRATHAMESH DREAM PROPERTIES PVT. LTD. 402, VASUDEV CHAMBER, OPP. DMART, MULUND LINK ROAD, MUMBAI-400079 / VS. DCIT, CENTRAL CIRCLE-1, ROOM NO.10, 6 TH FLOOR, A-WING, ASHAR IT PARK, ROAD NO.16-Z, WAGLE INDL. ESTATE, THANE(W)-400604 ( /ASSESSEE) ( / REVENUE) P.A. NO. AAACN1346D / DATE OF HEARING : 05/04/2019 / DATE OF ORDER: 12/04/2019 / 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 C BENCH IN ITA NO.86/MUM/2016 DATED 30/11/2017 FOR AY 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 SUBODH RATNAPARKHI / REVENUE BY SHRI RAVINDRA - DR 2 MA NO.472/MUM/2018 RELEVANT CONTENTS OF THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE ARE REPRODUCED HEREUNDER:- 1. WE ARE A PRIVATE LIMITED COMPANY ENGAGED IN THE BUSINESS OF BUILDERS AND DEVELOPERS. THE RETURN OF INCOME FOR T HE YEAR UNDER APPEAL WAS FILED ON 18.11.2013 DECLARING TOTAL INCOME OF R S. 6,58,92,370/-. A SEARCH U/S 132 OF THE I. T. ACT 1961 WAS CARRIED OU T ON OUR COMPANY ON 13.07.2011. THE ASST. PROCEEDINGS U/S 153A WERE COM MENCED BY ISSUE OF NOTICE ON 28.03.2013. THE ORDER UNDER APPEAL IS THE ORDER FRAMED BY THE ID AO U/S 143(3)R.W.S. L53AOF THE I. T. ACT 1961 ON 21.03.2014. 2. WE FILED APPEAL AGAINST THE ORDER FRAMED U/S 143 (3) R.W.S. 153A BEFORE THE HON. CIT(A)-1, THANE ON 21.04.2014. THE HON. CIT (A)-11, PUNE DISMISSED THE APPEAL AND CONFIRMED THE ADDITIO N VIDE APPELLATE ORDER DT. 30.10.2015. 3. WE FURTHER FILED APPEAL AGAINST THE ORDER PASSED BY THE HON. CIT (A)-1 1, PUNE WITH THE HON. ITAT, MUMBAI ON 07.0 1. 2016 (ITA NO. 86/MUM/2016). 4. IT APPEARS THAT THE HEARING OF THE ABOVE APPEAL WAS FIXED BEFORE THE HON. MEMBERS, 'C' BENCH, ITAT MUMBAI ON 30.11.2 017. THE NOTICE OF HEARING RECEIVED BY US WAS FORWARDED TO OUR REGU LAR CHARTERED ACCOUNTANT, SHRI. SAMPAT BALDIA WHO HAD ALSO ATTEND ED THE ASSESSMENT PROCEEDINGS BEFORE THE ID. AO IN OUR CASE. 5. UNFORTUNATELY, CA SHRI SAMPAT BALDIA TO WHOM THE APPEAL HEARING NOTICE WAS FORWARDED BY MAIL WAS SUFFERING FROM MAL ARIA AND JAUNDICE AT THAT TIME AND WAS RESTING AT HOME. IN THE SITUATION , CA SHRI SAMPAT BALDIA COULD NOT FORWARD THE APPEAL NOTICE TO ANY COUNSEL TO ATTEND THE HEARING ON THE GIVEN DATE. IT IS FOR THIS REASON THAT WE CO ULD NOT BE REPRESENTED BEFORE THE HON. ITAT ON 30.11.2017, THE DATE OF HEA RING. 6. AS WE HAD FORWARDED THE NOTICE OF HEARING, WE WE RE UNDER THE IMPRESSION THAT CA SHRI SAMPAT BALDIA WAS LOOKING A FTER THE APPEAL PROCEEDINGS BEFORE THE HON. ITAT. MUMBAI. WE BECAME AWARE OF NON- ATTENDANCE ONLY ON RECEIPT OF ORDER FROM THE HON. M EMBERS, 'C' BENCH, ITAT, MUMBAI. 7. EX-PARTE DISMISSAL OF APPEAL HAS RESULTED IN PRE JUDICE TO YOUR APPELLANT. THE APPELLANT IS CONFIDENT THAT IF THE M ERITS OF HIS CASE ARE EXAMINED HE WOULD BE ELIGIBLE FOR RELIEF. 3. THE LD. AR FOR THE ASSESSEE SUBMITTED THAT THE T RIBUNAL HAS DECIDED APPEAL FILED BY THE ASSESSEE EX-PARTE FOR NON-APPEARANCE A S ON DATE OF HEARING I.E. 30/11/2017. THE LD. AR FOR THE ASSESSEE, FURTHER SU BMITTED THAT ALTHOUGH THE 3 MA NO.472/MUM/2018 ASSESSEE HAS RECEIVED NOTICE OF HEARING FIXING CASE FOR HEARING ON 30/11/2017, BUT THE CHARTERED ACCOUNTANT, WHO WAS HANDLING THE TAX MATTERS, COULD NOT FORWARD THE NOTICE OF HEARING TO THE COUNSEL TO ATTEND HEARING ON GIVEN DATE, BECAUSE SHRI SAMPAT BALDIA, CHARTERED ACCOUNTANT WAS SUFFERING FROM MAL ARIA AND JAUNDICE AT THAT TIME AND HE WAS UNDER TREATMENT. THEREFORE, THE ASSESSEE COULD NOT REPRESENT ITS CASES BEFORE THE TRIBUNAL AND HENCE, ORDER MAY BE RECALLE D TO GIVEN ONE MORE OPPORTUNITY TO THE ASSESSEE TO ARGUE ITS CASE ON MERIT IN THE INTE REST OF JUSTICE. IN THIS REGARD, THE LD. AR FOR THE ASSESSEE HAS FILED AN AFFIDAVIT OF THE C HARTERED ACCOUNTANT, WHO WAS HANDLING TAX MATTERS ALONG WITH MEDICAL CERTIFICATE ISSUED BY THE DOCTOR WHO WAS TREATING HIM FOR MALARIA AND JAUNDICE. 4. THE LD. DR, ON THE OTHER HAND, FAIRLY ACCEPTED T HAT ONE MORE CHANCE OF HEARING MAY BE GIVEN TO THE ASSESSEE. 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.86/MUM/2016, DATED 30/11/2017, FOR AY 2011-12. WE FIND THAT THE TRIBUN AL HAS DISPOSED OF THE APPEAL FILED BY THE ASSESSEE VIDE ITS ORDER DATED 30/11/2017 WIT HOUT HEARING THE ASSESSEE FOR THE REASON THAT IN SPITE OF GIVING NOTICE OF HEARING, T HE ASSESSEE DID NOT APPEAR TO ARGUE ITS CASE. THE ASSESSEE HAS STATED REASONS FOR NOT A PPEARING BEFORE THE TRIBUNAL ON THE DATE GIVEN FOR HEARING, AS PER WHICH THE CHARTE RED ACCOUNTANT, WHO WAS HANDLING THE TAX MATTER, COULD NOT FORWARD NOTICE OF HEARING TO ANY COUNSEL, TO APPEAR, DUE TO ILL HEALTH. WE FIND THAT THE ASSESSEE HAS FILED AFFIDAV IT FROM THE CHARTERED ACCOUNTANT ALONG WITH MEDICAL CERTIFICATE ISSUED BY DOCTOR, WH O WAS TREATING HIM FOR HIS ILL HEALTH. 4 MA NO.472/MUM/2018 THEREFORE, CONSIDERING THE FACTS AND CIRCUMSTANCES UNDER WHICH THE ASSESSEE COULD NOT APPEAR FOR HEARING BEFORE THE TRIBUNAL, ALTHOUG H THE TRIBUNAL HAS DISPOSED OF THE APPEAL OF THE ASSESSEE ON MERIT, TO GIVE ONE MORE O PPORTUNITY OF HEARING TO THE ASSESSEE TO ARGUE ITS CASE ON MERIT, WE DEEM IT APP ROPRIATE TO RECALL THE ORDER OF THE TRIBUNAL IN ITA NO.86/MUM/2016. HENCE, WE RECALLED THE ORDER OF THE TRIBUNAL AND POST THE CASE FOR HARING ON 17/06/2019 FOR WHICH NO SEPARATE NOTICE OF HEARING SHALL BE ISSUED TO THE ASSESSEE. 4. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 12/042019. SD/- SD/- ( MAHAVIR SINGH ) (G. MANJUNATHA) ! ' /JUDICIAL MEMBER # ' / ACCOUNTANT MEMBER MUMBAI; DATED : 12/04/2019 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 6. )- . / GUARD FILE. / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI