DINESH KHANNA, V. DCIT CIR 39,

MA 506/MUM/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9466 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2001-2002
• Appeal Filed On: 03-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMARD EEP

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D, MUMBAI BEFORE AND SHRI P.M.JAGTAP, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBER. M.A. NO. 506 TO 511/MUM/2012. (IN ITA NOS .4200 TO 4205/MUM/2010) ASSTT. YEARS : 2004-05, 05-0 6, 04-05, 03-04, 02-03&06-07) SHRI DINESH KHANNA, DY. COMMISSIONER OF 501/502, ASHOK HOUSE, VS. INCOME TAX, GANDHIGRAM ROAD, JUHU, CENTRAL CIRCLE-39, MUMBAI -400 053. MUMBAI. PAN AAFPK 8037Q APPLICANT. RESPONDENT. APPLICANT BY : SHRI SATISH R. MODY.. RESPONDENT BY : SHRI AMARDEEP. DATE OF HEA RING : 30-11-2012. DATE OF PRONOUNCEM ENT : 30-11-2012. O R D E R PER P.M. JAGTAP, A.M. : BY THESE MISCELLANEOUS APPLICATIONS, THE ASSESSEE IS SEEKING RECALL OF THE COMMON ORDER OF THE TRIBUNAL DATED 27 TH OCT., 2011 DISMISSING THE APPEALS OF THE ASSESSEE BEING ITA NOS. 4200 TO 4205/MUM/2010 FOR A SSESSMENT YEARS 2001-02 TO 2006-07 EXPARTE FOR WANT OF PROSECUTION ON THE FOLL OWING GROUNDS GIVEN IN THE SAID APPLICATION: ON THE PREVIOUS DATE VIZ. 25 TH AUGUST, 2011, WHEN THE SAID APPEALS WERE LISTED FOR HEARING, THE APPLICANTS COUNSEL CA PARE SH VAKHARIA WHO IS SUFFERING FROM POLIO WAS HAVING SEVERE BACK PROBLEM . DUE TO THE SAID AILMENT OF THE COUNSEL ADJOURNMENT WAS SOUGHT BY TH E APPLICANT. THE 2 M.A.NOS.506 TO 5011/MUM/2012 HONBLE TRIBUNAL WAS KIND ENOUGH TO ADJOURN THE SAI D APPEALS AND A FRESH DATE OF 27 TH OCTOBER 2011 WAS GIVEN. THE APPLICANTS REPRESENTA TIVE WHO WAS PRESENT IN THE COURT ROOM ON THE SAID PREVIOUS DATE TO TAKE AN ADJOURNMENT WAS UNAWARE OF THE FACT THAT THE DATE GIVEN BY THE HONBLE TRIBUNAL WAS THE NEXT DAY OF DIWALI I.E. THE NEW YEAR DAY. WHEN THE APPLICANT INFORMED THE SAID DATE OF 27 TH OCTOBER, 2011 TO HIS COUNSEL CA PARESH VAKHARIA, T HE COUNSEL INFORMED THE APPLICANT THAT ON THE SAID DA Y BEING THE NEW YEAR DAY HE WOULD BE AT HIS NATIVE PLACE IN GUJARAT, WHERE H IS PARENTS RESIDE, TO PERFORM CERTAIN CUSTOMARY LAXMI POOJA RITUALS AND R EQUESTED THE APPLICANT TO SEEK A FRESH DATE. THE APPLICANTS REPRESENTATIV E ACCORDINGLY APPEARED ON THE APPOINTED DATE I.E. 27 TH OCTOBER, 2011 BEFORE THE HONBLE TRIBUNAL AND FILED A LETTER SEEKING ADJOURNMENT AS THE COUNSEL W AS NOT IN MUMBAI. IT IS UNDER THESE FACTS THE APPLICANT ASKED FOR AN ADJOUR NMENT IN THE SAID APPEALS ON 27 TH OCTOBER 2011 DESPSITE SEEKING ADJOURNMENT ON THE P REVIOUS DATE OF HEARING. IN THE CIRCUMSTANCES THE APPLICANT STATES AND SUBMI TS THAT NON REPRESENTATION IN THE SAID APPEALS BY THE COUNSEL OF THE APPLICANT WAS DUE TO THE REASONS STATED HEREIN ABOVE AND THAT THE NON REPRESENTATION WAS NOT WITH ANY DELIBERATE OR MALAFIDE INTENTION. THE APPLICANT UND ERTAKES TO HENCEFORTH BE MORE DILIGENT AND HUMBLAY REQUESTS YOUR HONOURS TO KINDLY CONSIDER THE ABOVE CIRCUMSTANCES AND RECALL THE ORDER AND GIVE A N OPPORTUNITY TO THE APPLICANT TO BE HEARD, AS THE APPLICANT IS INTEREST ED IN PROSECUTING THE SAID APPEALS. 2. AFTER HAVING CONSIDERED THE RIVAL SUBMISSIONS AN D PERUSING THE RELEVANT MATERIAL ON RECORD, WE ARE SATISFIED THAT THE REASO NS GIVEN BY THE ASSESSEE AS ABOVE FOR HIS NON APPEARANCE ON THE DATE OF HEARING FIXED ON 27-10-2011 CONSTITUTED A SUFFICIENT CAUSE. ACCORDINGLY KEEPING IN VIEW THE P ROVISO TO RULE 24 OF THE APPELLATE TRIBUNAL RULES, 1963, WE RECALL THE EXPAR TE ORDER DATED 27 TH OCTOBER, 2011 PASSED BY THE TRIBUNAL AND RESTORE THE APPEALS OF THE ASSESSEE TO ITS ORIGINAL NUMBER. THE REGISTRY IS DIRECTED TO FIX THE SAID AP PEALS FOR HEARING AFRESH ON 29 TH JANUARY, 2013 AS ANNOUNCED IN THE OPEN COURT AND TA KEN NOTE OF BY THE LEARNED REPRESENTATIVES OF BOTH THE SIDES. 3 M.A.NOS.506 TO 5011/MUM/2012 3. IN THE RESULT, THE MISCELLANEOUS APPLICATIONS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF NOV., 2012. SD/- SD/- (VIVEK VARMA) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED : 30 TH NOV., 2012. WAKODE COPY TO : 1. APPLICANT. 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. D.R., D-BENCH. (TRUE COPY) BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.