SHRI DEEPAK AWATRAM VALECHA, MUMBAI V. INCOME TAX OFFICER WARD-4, MUMBAI

MA 51/MUM/2023

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The case revolves around a Miscellaneous Application filed by the assessee, Deepak Awatram Valecha, seeking rectification of mistakes apparent from the record in a previous Tribunal order. The Tribunal had earlier dismissed a similar application ex-parte due to the non-appearance of the assessee, which was contested by the assessee's representative on grounds of an unconsidered adjournment letter. The Tribunal, upon reviewing the circumstances and the principles of natural justice, decided to recall the earlier ex-parte order and re-hear the application, emphasizing the importance of fair hearing and justice over procedural technicalities.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 136445 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-05-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 11-05-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 16-01-2023
• Other Referred Cases: Supreme Industries Ltd. Vs. Addl.CIT (2015) 55 taxman.com 82
• Laws Referred To: Rule 24 of the Appellate Tribunal Rules, 1963, Section 254(2) of the Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Reasonable cause
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI ‘SMC’ BENCH, MUMBAI. Before Shri B.R. Baskaran (AM) & Shri Pavan Kumar Gadale (JM) M.A. No. 51/Mum/2023 in I.T.A. No. 321/Mum/2018 (A.Y. 2012-13) Deepak Awatram Valecha Abika Bhawan Naka Post Neral, Tal-Karjat Raigad-410 101. PAN : ABYPV6787C V s . ITO, Ward No. 4 Panvel Raigad (Appellant) (Respondent) Assessee by Shri N.M. Porwal Department by Shri Soumendu Kumar Dash D ate of He ar ing 12.05.2023 D ate of P r onou nce me nt 17.05.2023 O R D E R Per B.R.Baskaran (AM) :- The assessee has moved this Miscellaneous Application seeking rectification of the mistakes apparent from record in the order dated 11.10.2018 passed by the Tribunal in ITA No. 321/Mum/2018 relating to A.Y. 2012-13. 2. On perusal of the record, we noticed that the assessee had earlier moved a Miscellaneous Application, which was numbered as M.A.No. 294/Mum/2019 and the same was dismissed by the Tribunal in an ex-parte order passed on 30.9.2022. With regard to the earlier miscellaneous application, the learned counsel has stated that the he filed an adjournment letter, when the same was fixed on 30.9.2022, but the said letter was not brought to the notice of the Bench by the Registry. The Ld A.R submitted that he was under bonafide belief that the adjournment would be granted, but the Tribunal disposed of the Miscellaneous Application of the assessee ex-parte by dismissing the same. Deepak Awatram Valecha 2 3. The Learned AR submitted that there was sufficient cause for the assessee in not appearing before the Tribunal on the date when the Miscellaneous Application was disposed of. He further submitted that there was violation of principles of natural justice in not hearing the assessee before disposing of the miscellaneous application. Accordingly, the learned AR prayed that, in the interest of natural justice, the ex-parte order dated 30-09-2022 passed in respect of the earlier Miscellaneous Application be recalled. The Ld A.R submitted that the Tribunal has got inherent powers to correct the errors and in support of this proposition, the learned AR placed reliance on the decision rendered by Hon'ble Bombay High Court in the case of Supreme Industries Ltd. Vs. Addl.CIT (2015) 55 taxman.com 82. The Learned AR also submitted that the spirit of Rule 24 of the Appellate Tribunal Rules is to recall the orders passed ex-parte and by applying the said principle also, the impugned order dated 30-09-2022 passed in M A No.294/Mum/2019 requires to be recalled. 4. The learned DR submitted that the assessee has filed a miscellaneous application on the order passed against earlier miscellaneous application. Accordingly, he contended that the present miscellaneous application is liable to be dismissed. 5. We heard the parties and perused the record. Admittedly, the order in M.A. No. 294/Mum/2019 filed by the assessee earlier had been disposed of by the Tribunal ex-parte, since none appeared on behalf of the assessee. It is the submission of learned AR that he had filed an adjournment letter. It is the submission of Ld A.R that the said letter was not placed before the bench. Though the Ld A.R did not furnish evidence for filing adjournment letter, yet we are of the view that there was reasonable cause for the assessee in not appearing before the Tribunal on the date of hearing, when the earlier application was disposed of. Deepak Awatram Valecha 3 6. Since the assessee was not heard on the Miscellaneous Application, the assessee has moved the present miscellaneous application, apparently pointing out violation of principles of natural justice. Hence, it is not a case of filing of miscellaneous application on earlier order passed on another miscellaneous application. We also agree with the submission of ld A.R that the spirit of Rule 24 of the Appellate Tribunal Rules, 1963 is to grant fair opportunity of hearing. Accordingly, we are of the view that the order dated 30-09-2022 passed by the Tribunal in M.A.No. 294/Mum/2019 requires to be recalled on the reasoning that justice has to be done between the parties i.e. no prejudice should be cause to any of the parties. In this regard, we take support from the following observations made by Hon'ble Jurisdictional Bombay High Court in the case of Supreme Industries Limited (supra). “12. It is a settled position in law that every authority exercising quasi judicial powers has inherent/ incidental power in discharging of its functions to ensure that justice is done between parties i.e. no prejudice is caused to any of the parties. This power has not to be traced to any provision of the Act but inheres in every quasi judicial authority. This has been so held by the Supreme Court in Grindlays Bank Ltd. v. Central Government Industrial Tribunal AIR 1981 SC 606. Therefore, the aforesaid principle of law should have been adopted by the Tribunal. It is expected from the Tribunal to adopt a justice oriented approach and not defeat the legitimate rights on the altar of procedures and technicalities. This is particularly so when there is no specific bar in the Act to correct an order passed on rectification. 13. It is fundamental principle of law that no party should be prejudiced on account of any mistake in the order of the Tribunal. Though not necessary for the disposal of this Petition, we express our disapproval of the stand taken in the impugned order that Section 254(2) of the Act are meant only for rectifying the mistakes of the Tribunal and not of the parties. The Tribunal and the parties are not adversarial to each other. In fact, the Tribunal and the parties normally represented by Advocates/ Chartered Accountants are comrades in arms to achieve justice. Therefore, a mistake from any source be it-the parties or the Tribunal so long as it becomes a part of the record, would require examination by the Tribunal under Section 254(2) of the Act. It cannot be dismissed at the threshold on the above ground.” 7. Accordingly, applying the spirit of Rule 24 of Appellate Tribunal Rules and also taking support of the above said decision of jurisdictional Hon’ble Deepak Awatram Valecha 4 Bombay High Court, we recall the order dated 30.9.2022 passed in M.A.No. 294/Mum/2019. 8. We also direct the registry to post that Miscellaneous Application in M A No.294/Mum/2019 in the normal course for hearing under intimation to both the parties. 9. In the result, Miscellaneous Application No.51/Mum/2023 of the assessee is allowed. Pronounced in the open court on 17.5.2023. Sd/- Sd/- (PAVAN KUMAR GADALE) (B.R. BASKARAN) Judicial Member Accountant Member Mumbai; Dated : 17/05/2023 Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. The CIT(Judicial) 4. PCIT 5. DR, ITAT, Mumbai 6. Guard File. BY ORDER, //True Copy// (Assistant Registrar) PS ITAT, Mumbai