UMESH JOSHI, PUNE V. ACIT, CC- 8(4), MUMBAI

MA 511/MUM/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0397 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 06-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AKHTER H ANSARI

Judgement Text

P A G E | 1 M.A. 511/MUM/2019 A.Y. 2014 - 15 (ARISING OUT OF ITA NO.3842/MUM/2018) SHRI UMESH JOSHI VS. ACIT, C.C - 8(4) IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER M.A. NO. 511/MUM/2019 (ARISING OUT OF ITA NO.3842/MUM/2018) (ASSESSMENT YEARS: 2014 - 15 ) SHRI UMESH JOSHI 81/83, BHULABHAI DESAI ROAD, 63 SAGAR TARANG, 9 TH FLOOR, BREACH CANDY, MUMBAI 400 026 VS. ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 8(4), MUMBAI PAN ABOPJ0541Q (APPLICANT) (RESPONDENT) APPLICANT BY: SHRI RAKESH JOSHI, A.R RESPONDENT BY: SHRI AKHTER H. ANSARI, D.R DATE OF HEARING: 15.11.2019 DATE OF PRONOUNCEMENT: 2 6 .12.2019 O R D E R PER RAVISH SOOD, JM: THE PRESENT MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE ON 06.09.2019 ARISES FROM THE ORDER PASSED BY THE TRIBUNAL IN THE CASE OF SHRI UMESH JOSHI VS. ACIT, CENTRAL CIRCLE - 8(4), VIZ. ITA NO.3842/MUM/2018, DATED 30.04.2019. 2. IN THE COURSE OF THE HEARING OF THE APPLICATION , IT WAS SUBMITTED BY TH E LD. AUTHORIZED REPRESENTATIVE (FOR SHORT A.R) FOR THE ASSESSEE THAT THE APPEAL OF THE ASSESSEE WAS DISMISSED BY THE TRIBUNAL VIDE AN EX - PARTE ORDER, DATED 30.04.2019. IT WAS SUBMITTED BY THE LD. A.R THAT AS NEITHER THE ASSESSEE ON THE DATE OF HEARING OF THE APPEAL ON 25.04.2019 HAD PUT UP AN P A G E | 2 M.A. 511/MUM/2019 A.Y. 2014 - 15 (ARISING OUT OF ITA NO.3842/MUM/2018) SHRI UMESH JOSHI VS. ACIT, C.C - 8(4) APPEARANCE NOR FILED ANY APPLICATION SEEKING ADJOURNMENT OF THE CASE, THEREFORE, THE TRIBUNAL HAD PROCEEDED WITH AND DISPOSED OFF THE APPEAL BY WAY OF AN EX - P ARTE ORDER. 3. IT WAS SUBMITTED BY THE LD. A.R THAT THE FAILURE ON THE PART OF THE ASSESSEE TO PUT UP AN AP PEARANCE ON THE STIPULATED DATE OF HEARING OF THE APPEAL HAD OCCASIONED, FOR THE REASON, THAT NO NOTICE INTIMATING THE FIXATION OF THE APPEAL FOR THE AFORESAID DATE I.E 25.04.2019 WAS EVER RECEIVED BY THE ASSESSEE. TO SUM UP, IT WAS THE CLAIM OF THE LD. A. R THAT AS THE ASSESSEE APPLICAN T HAD NO KNOWLEDGE ABOUT THE FIXATION OF THE APPEAL ON 25.04.2019, THEREFORE, HE HAD FAILED TO EFFECT NECESSARY COMPLIANCE AND THEREIN PUT UP AN APPEARANCE BEFORE THE TRIBUNAL. ON THE BASIS OF THE AFORESAID FACTS, IT WAS AVERRED BY THE LD. A.R. THAT THE EX - PARTE ORDER PASSED BY THE TRIBUNAL MAY BE RECALLED . 4. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE (FOR SHORT D.R) DID NOT CONTROVERT THE AFORESAID FACTS AS WERE SO AVERRED BY THE COUNSEL FOR THE ASSESSEE. 5. WE HAVE HEARD THE AUTHORIZED REPR ESENT ATIVES FOR BOTH THE PARTIES, AND PERUSED THE RECO RDS. AS CAN BE GATHERED FROM A PERUSAL OF THE RECORDS, WE FIND , THAT THE NOTICES INTIMATING THE FIXATION OF THE APPEAL OF THE ASSESSEE HAD BEEN RETURNED UN - SERVED. IN FACT, WE FIND THAT THE ASSESSEE HAD FILE D A LETTER ON 26.08.2019 , WHEREIN IT WAS INFORMED BY HIM THAT THOUGH THE ORDER OF THE TRIBUNAL IN THE ASSESSE S CASE WAS SHOWING UP ON THE ONLINE PORTAL, HOWEVER, A PHYSICAL COPY OF THE SAID ORDER HAD NOT BEEN RECEIVED. ON A PERUSAL OF THE RECORDS, WE FIND THAT THE AFORESAID CLAIM OF THE ASSESSEE IS IN ORDER . ON THE BASIS OF THE AFORESAID FACTS, WE FIND SUBSTANTIAL FORCE IN THE CLAIM OF THE ASSESSEE THAT AS THE NOTICES INTIMATING THE FIXATION OF THE A PPEAL WERE NOT RECEIVED BY HIM, THEREFORE, HE HAD REMAINE D DIVESTED OF AN OPPORTUNITY OF P UTTING UP AN APPEARANCE IN THE COUR SE OF THE APPELLATE PROCEEDINGS. IN THE BACKDROP OF THE AFORESAID FACTS , WE ARE OF THE CONSIDERED VIEW THAT THE ORDER PASSED BY THE TRIBUNAL IN ALL FAIRNESS REQUIRES TO BE RECALLED. ACCORD INGLY, THE REGISTRY IS DIRECTED TO FIX THE MATTER FOR HEARING ON 19.02.2020 . THE NOTICE INTIMATING THE FIXATION OF THE APPEAL FOR THE AFORESAI D DATE BE SENT TO THE PARTIES CONCERNED. P A G E | 3 M.A. 511/MUM/2019 A.Y. 2014 - 15 (ARISING OUT OF ITA NO.3842/MUM/2018) SHRI UMESH JOSHI VS. ACIT, C.C - 8(4) 6. THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER PR ONOUNCED IN THE OPEN COURT ON 2 6 . 12.2019 S D / - S D / - ( SHAMIM YAHYA ) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 2 6 /12/2019 ROHIT, P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (SR. PRIVATE SECRETARY) ITAT, MUMBAI