KISHORE DUBY, V. ITO 24(3)(1),

MA 518/MUM/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0058 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-02-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 01-02-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 07-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MENINO DIAS

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D BENCH BEFORE SHRI B.R.MITTAL(JUDICIAL MEMBER) AND SHRI SANJAY ARORA (ACCOUNTANT MEMBER) M.ANO.518/M/2012 (ARISING OUT OF ITA NO.6142/MUM/2009) ASSESSMENT YEAR: 2005-06 KISHORE DUBEY, 3, SATWANT VILLA, AAREY ROAD, GOREGOAN (W), MUMBAI-62 PAN NO.AABPD 7612 E ITO 24(3)(1), MUMBAI. (APPELLANT) VS. (RESPONDENT) APPELLANT BY : SHRI MENINO DIAS RESPONDENT BY: SHRI MOHIT JAIN DATE OF HEARING: 01.2.2013 DATE OF PRONOUNCEMENT: 01 .2.2013 ORDER PER B.R.MITTAL, JM: THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICATI ON FOR RECALLING ORDER OF THE TRIBUNAL DATED 22.3.2012 PASSED IN I.T.A. NO.6142/M /2009. 2. IN THE APPLICATION, IT IS STATED THAT ON 22.3.20 12, WHEN THE MATTER WAS FIXED BEFORE THE TRIBUNAL, ASSESSEE COULD NOT BE PRESENT IN THE COURT BECAUSE HIS ADVOCATE INFORMED THE ASSESSEE THAT THE MATTER HAD BEEN ADJO URNED FOR HEARING TO 28.5.2012. ASSESSEE CAME TO KNOW ON 11.4.2012, WHEN HE RECEIVE D THE ORDER THAT THE APPEAL OF THE ASSESSEE WAS DISMISSED FOR DEFAULT OF NON-PROSE CUTION. M.ANO.518/M/2012 (ARISING OUT OF ITA NO.6142/MUM/2009) ASSESSMENT YEAR: 2005-06 2 3. AT THE TIME OF HEARING, LD COUNSEL FOR ASSESSEE SHRI MENINO DIAS STATED THAT THE ADVOCATE WHO WAS APPEARING ON BEHALF OF ASSESSEE DI D NOT PURSUE THE MATTER AND KEEP THE ASSESSEE INFORMED. THEREFORE, APPEAL WAS DISMI SSED IN VIEW OF THE NEGLIGENCE OF THE SAID ADVOCATE TO WHOM ASSESSEE HAD BRIEFED THE MATTER. HE SUBMITTED THAT THE ORDER PASSED BY THE TRIBUNAL DT.22.3.2012 BE RECAL LED AND THE APPEAL BE HEARD ON MERITS. 4. LD D.R. SUBMITTED THAT THIS IS THE SECOND ROUND OF MISCELLANEOUS APPLICATION BY THE ASSESSEE. HE SUBMITTED THAT ON EARLIER OCCASIO N ALSO, ASSESSEE FILED APPEAL AND THE TRIBUNAL DISMISSED THE APPEAL OF THE ASSESSEE ON 16 .7.2010. LD D.R. SUBMITTED THAT THE TRIBUNAL RECALLED THE SAID ORDER IN M.A. NO.567/M/2 010 VIDE ORDER DATED 18.3.2011 IN THE INTEREST OF JUSTICE GIVING AN OPPORTUNITY TO TH E ASSESSEE. LD D.R. SUBMITTED THAT ASSESSEE IS NON-COOPERATIVE AND THE ASSESSMENT ORDE R WAS ALSO FRAMED U/.S.144 OF THE ACT. HE FURTHER SUBMITTED THAT EVEN BEFORE LD CIT(A ), THERE WAS NO APPEARANCE ON BEHALF OF ASSESSEE AND THE APPEAL OF THE ASSESSEE W AS DECIDED EXPARTE AGAINST WHICH THE APPEAL BEFORE THE TRIBUNAL WAS FILED. HE FURTH ER SUBMITTED THAT EVEN ON 19.3.2012, THE CASE WAS ADJOURNED TO 22.3.2012 AT THE REQUEST OF ASSESSEES COUNSEL. LD D.R. SUBMITTED THAT IN VIEW OF ABOVE FACTS, IT IS NOT A FIT CASE TO RECALL THE ORDER OF THE TRIBUNAL AS ASSESSEE IS NEITHER COOPERATIVE NOR SIN CERE IN PURSUING THE APPEAL BEFORE THE TRIBUNAL. 5. WE HAVE CONSIDERED SUBMISSIONS OF LD REPRESENTAT IVES OF PARTIES AND HAVE PERUSED THE MATERIAL PLACED ON RECORD. WE FIND MER IT IN THE SUBMISSION OF LD D.R. THAT ASSESSEE IS NON-COOPERATIVE RIGHT FROM THE ASSESSM ENT STAGE. WE ALSO AGREE THAT ASSESSMENT ORDER WAS PASSED U/S.144 OF THE ACT AND EVEN BEFORE LD CIT(A), APPEAL WAS DISPOSED OF BY EXPARTE ORDER BY LD CIT(A). WE ALSO OBSERVE THAT THE TRIBUNAL EARLIER DISMISSED THE APPEAL OF THE ASSESSEE VIDE ORDER DAT ED 16.7.2010 BUT THE TRIBUNAL IN THE INTEREST OF JUSTICE AND GIVING AN OPPORTUNITY TO TH E ASSESSEE RECALLED ITS ORDER DT. 18.3.2011 IN M.A. NO.567/M/2010. WE ALSO OBSERVE T HAT WHEN THE APPEAL WAS FIXED FOR HEARING, AFTER RECALLING ITS ORDER ON 19.3.2012, AP PEAL WAS ADJOURNED TO 22.3.2012 AT THE M.ANO.518/M/2012 (ARISING OUT OF ITA NO.6142/MUM/2009) ASSESSMENT YEAR: 2005-06 3 REQUEST OF ASSESSEES REPRESENTATIVE VIDE LETTER DT .19.3.2012. WE OBSERVE THAT ON THE DATE FIXED FOR HEARING ON 22.3.2012, NO ONE APPEARE D ON BEHALF OF ASSESSEE. NOR THERE WAS ANY APPLICATION FOR ADJOURNMENT. ACCORDINGLY, THE TRIBUNAL CONSIDERING THE PAST CONDUCT OF THE ASSESSEE DISMISSED THE APPEAL SUMMAR ILY. AT THE TIME OF HEARING OF THIS MISC. APPLICATION, LD COUNSEL APPEARING ON BEHALF O F ASSESSEE MR MENINO DIAS PUT BLAME ON EARLIER COUNSEL OF NOT KEEPING THE ASSESSEE INFO RMED AND NOR REPRESENTING THE MATTER OF THE ASSESSEE PROPERLY. WE EXPRESS UNHAPP INESS ON THE AVERMENTS OF LD A.R. TO PUT THE BLAME ON EARLIER COUNSEL CONSIDERING THE FACTS IN ENTIRETY AS STATED HEREIN ABOVE. HOWEVER, LD A.R. AT THE TIME OF HEARING SUB MITTED THAT IF AN OPPORTUNITY IS GIVEN TO THE ASSESSEE, HE WILL MAKE THE SUBMISSION ON MER ITS AND IN THE INTEREST OF JUSTICE, ORDER MAY BE RECALLED. 6. BE THAT AS IT MAY, WE, IN ORDER TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE, STATE THAT WE ARE INCLINED TO RECALL THE EXPARTE OR DER DT.22.3.2012 SUBJECT TO CONDITION THAT ASSESSEE MUST PAY COST FOR HIS ABOVE NEGLIGENC E AND TO TAKE THE DEPARTMENT AS WELL AS PROCEEDINGS BEFORE THE APPELLATE AUTHORITIE S CASUALLY. LD A.R. CONCEDED THAT ORDER MAY BE RECALLED AND REASONABLE COST MAY BE IM POSED SO THAT ASSESSEE PUTFORTH HIS SUBMISSION ON MERITS. ON HEARING APPLICATION O F THE ASSESSEE, WE INDICATED IN THE PRESENCE OF LD REPRESENTATIVES OF PARTIES THAT WE S HALL RECALL OUR ORDER DT.22.3.2012 SUBJECT TO THE CONDITION THAT ASSESSEE SHOULD PAY R S.5000/- AS COST TO THE DEPARTMENT AND THE APPEAL WILL BE TAKEN UP FOR HEARING THEREAF TER ON 8.4.2013 BEFORE DBENCH. LD A.R. CONCEDED ABOVE CONDITION AND ALSO THE DATE AS INDICATED AT THE TIME OF HEARING. 7. THEREFORE, WE RECALL OUR EXPARTE ORDER DT.22.3.2 012 SUBJECT TO CONDITION THAT ASSESSEE WILL PAY RS.5000/- AS COST TO THE DEPARTME NT AND THE APPEAL WILL BE FIXED BY THE REGISTRY ON 8.4.2013 BEFORE D BENCH. SINCE THE ABOVE DATE WAS INDICATED IN THE PRESENCE OF BOTH PARTIES, IT WAS MADE CLEAR THAT NO NOTICE OF HEARING WILL BE ISSUED AND IF ANY OF THE PARTY FAILS TO APPEAR, APPEAL WILL BE DISPOSED OFF ON HEARING OF PARTY PRESENT AND CONSIDERING THE MATERIAL PLACED ON RECO RD. M.ANO.518/M/2012 (ARISING OUT OF ITA NO.6142/MUM/2009) ASSESSMENT YEAR: 2005-06 4 8. IN THE RESULT, MISC. APPLICATION FILED BY ASSESS EE IS ALLOWED SUBJECT TO ABOVE CONDITION. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF PARTIES AFTER THE HEARING WAS CONCLUDED ON 1 ST FEBRUARY, 2013 SD/- (SANJAY ARORA ) ACCOUNTANT MEMBER SD/- (B.R. MITTAL) JUDICIAL MEMBER MUMBAI, DATED 01 ST FEBRUARY, 2013 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS) CONCERNED 4. COMMISSIONER OF INCOME TAX, CONCERNED 5. DEPARTMENTAL REPRESENTATIVE, BENCH D MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI