SAVITA ENTERPRISES, MUMBAI V. ACIT CIR. 1, MUMBAI

MA 52/MUM/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5469 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-02-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2007-2008
• Appeal Filed On: 24-02-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Assessee Lawyers: A N KULKARNI
• Keywords: Opportunity of being heard; Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'H' BENCH, MUMBAI BEFORE SHRI JASON P. BOAZ, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER MA NO. 52/MUM/2016 (ARISING OUT OF ITA NO. 1535/MUM/2011) (ASSESSMENT YEAR: 2007-08) M/S. SAVITA ENTERPRISES VS. A C I T, CIRCLE 1 C/O. N.A. KULKARNI, ADV. 1 ST FLOOR, WADAL BUILDING MANPADA ROAD, DOMBIVALI (E) MOHAN PLAZA, 1 ST FLOOR VAYLE NAGAR, TAL-KALYAN DIST. THANE PAN ABEFS3961P APPLICANT RESPONDENT APPLICANT BY: SHRI. A.N. KULKARNI RESPONDENT BY: SHRI RAJESH KUMAR YADAV DATE OF HEARING: 03.02.2017 DATE OF PRONOUNCEMENT: 03.02.2017 O R D E R PER JASON P. BOAZ, A.M. THIS MISCELLANEOUS APPLICATION (MA) BY THE ASSESSEE ARISES OUT OF THE ORDER OF THE TRIBUNAL IN ITA NO. 1535/MUM/2011 DATE D 09.12.2015 FOR A.Y. 2007-08; DISMISSING THE ASSESSEES APPEAL EXPA RTE ON MERITS DUE TO NON-PROSECUTION THEREOF BY THE ASSESSEE. 2. THE FACTS OF THE CASE, BRIEFLY, ARE AS UNDER: - 2.1 THE ASSESSEES APPEAL BEFORE THE TRIBUNAL WAS D IRECTED AGAINST THE ORDER OF THE CIT(A)-I, THANE DATED 15.12.2010 FOR A .Y. 2007-08. THE RECORD INDICATES THAT THE ASSESSEE WAS AFFORDED MANY OPPOR TUNITIES OF BEING HEARD; ON TWO OCCASIONS ADJOURNMENT WAS SOUGHT BY THE LEAR NED A.R. AND ON OTHER DATES NONE APPEARED FOR THE ASSESSEE. ON CERTAIN DA TES WHEN THE BENCH DID NOT FUNCTION THE CASE WAS ADJOURNED THROUGH THE NOT ICE BOARD. EVEN ISSUE OF NOTICE BY RPAD DID NOT ELICIT ANY RESPONSE FROM ASS ESSEE. FINALLY, WHEN THE CASE WAS LISTED FOR HEARING ON 30.11.2015 AND WHEN THE CASE WAS CALLED, NONE APPEARED ON BEHALF OF THE ASSESSEE. THEREFORE, THE APPEAL WAS DISPOSED OF EX-PARTE, ON MERITS, WITH THE ASSISTANCE OF THE LEARNED D.R. AND ON THE MA NO. 52/MUM/2016 M/S. SAVITA ENTERPRISES 2 BASIS OF MATERIAL AVAILABLE ON RECORD BEFORE US, HO LDING AGAINST THE ASSESSEE. AGGRIEVED BY THIS ORDER DATED 09.12.2015 FOR A.Y. 2 007-08, DISMISSING THE ASSESSEES APPEAL EX-PARTE, THE ASSESSEE HAS PREFER RED THAT PRESENT MISCELLANEOUS APPLICATION UNDER SECTION 254(2) OF T HE ACT. 3. WE HAVE HEARD THE COUNSELS OF BOTH THE PARTIES AND PERUSED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD. ON A C AREFUL PERUSAL OF THE ASSESSEES SUBMISSION, WE ARE OF THE VIEW THAT THE ASSESSEE FAILED TO POINT OUT ANY MISTAKE APPARENT FROM THE FACE OF OUR ORDER IN ITA NO. 1535/MUM/2011 DATED 09.12.2015 THAT WOULD REQUIRE RECTIFICATION. THE SUBMISSIONS IN THE MA, INTER ALIA, STATE THAT ON 30.11.2015 THE ASSESS EE/LEARNED A.R. ARRIVED AFTER THE HEARING IN THE CASE WAS OVER. IT IS SUBMI TTED THAT THE DELAY IN REACHING THE COURT ON TIME WAS DUE TO THE FACT THAT THEY HAD TO TRAVEL BY TRAIN FROM DOMBIVILI TO CHURCHGATE WHICH WAS RUNNING LATE . IT IS SUBMITTED BY THE LEARNED A.R. OF THE ASSESSEE THAT THERE WAS NO MALA FIDE INTENTION ON THE PART OF THE ASSESSEE IN NOT APPEARING BEFORE THE TRIBUNA L ON 30.11.2015 BUT WAS DUE TO REASONABLE CAUSE AS THE TRAINS WERE RUNNING LATE ON THAT DAY. IT IS PRAYED THAT THE EX-PARTE ORDER PASSED ON 09.12.2015 BE RECALLED AND THE ASSESSEES APPEAL BE REFIXED FOR HEARING ON MERITS. 4. IN THE CASE ON HAND, THOUGH IT IS EVIDENT THAT BOTH PARTIES HAVE BEEN PROVIDED ADEQUATE OPPORTUNITY OF BEING HEARD, WHICH THE ASSESSEE HAS FAILED TO AVAIL, THE PLEA HAS BEEN RAISED THAT THE DEFAULT OF NOT APPEARING FOR HEARING FIXED BEFORE THE BENCH ON 30.11.2015 WA S NOT ON ACCOUNT OF ANY DELIBERATE DEFAULT OR MALAFIDE INTENTION ON THE PART OF THE ASSESSEE. BE THAT AS IT MAY, THE OBJECT OF INCOME TAX PROCEEDING S IS PRIMARILY THAT THE CORRECT INCOME OF THE ASSESSEE BE BROUGHT TO TAX. N ATURAL JUSTICE REQUIRES THAT THE LIS BETWEEN THE PARTIES SHOULD BE DECIDED ON MERITS, AFTER PROVIDING DUE AND ADEQUATE OPPORTUNITY OF BEING HEA RD TO BOTH PARTIES. THE PROVISO TO RULE 24 OF THE I.T. RULES, 1962 (IN SHORT THE RULES) STATES THAT WHERE AN APPEAL HAS BEEN DISPOSED OFF EXPARTE FOR THE DEFAULT BY THE APPELLANT, IN THIS CASE THE ASSESSEE, IF THE ASSESS EE APPEARS AFTERWARDS AND SATISFIES THE TRIBUNAL THAT THERE WAS SUFFICIENT CA USE FOR HERE NON- APPEARANCE WHEN THE APPEAL WAS CALLED FOR HEARING, THE TRIBUNAL SHALL MAKE AN ORDER SETTING ASIDE THE EX-PARTE ORDER AND RESTORE THE APPEAL. MA NO. 52/MUM/2016 M/S. SAVITA ENTERPRISES 3 5. IN THE FACTUAL MATRIX AND CIRCUMSTANCES OF THE CASE , ON HAND, WE ARE OF THE CONSIDERED VIEW THAT IN TERMS OF THE PROVISO TO RULE 24 OF THE RULES, THE ENDS OF JUSTICE WOULD BE MET IF THE ASSESSEE IS PROVIDED WITH ONE MORE OPPORTUNITY OF HEARING, SO THAT THIS CASE BE DISPOS ED OFF ON MERITS. IN OUR VIEW, IF THIS MA IS ALLOWED AND THE APPEAL OF THE A SSESSEE IS RESTORED, NO PREJUDICE WOULD BE CAUSED TO THE INTEREST OF REVENU E, AS LEGITIMATE TAXES DUE ON THE ASSESSEES CORRECT INCOME WILL BE COLLEC TED. WHEREAS, IF THE CONTRARY VIEW IS TAKEN, THE ASSESSEE MAY BE PUT TO HARDSHIP AND DIFFICULTY. KEEPING IN VIEW THE DISCUSSION ABOVE, WE ALLOW THE ASSESSEES MA, INVOKING THE PROVISIONS OF THE PROVISO TO RULE 24 OF THE RUL ES AND ACCORDINGLY SET ASIDE OUR EX-PARTE ORDER IN ITA NO. 1535/MUM/2011 D ATED 09.12.2015 AND RESTORE THE APPEAL TO BE HEARD ON MERITS. 6. THE APPEAL IS TO BE FIXED FOR HEARING ON MERITS ON 11.04.2017. SINCE THE DATE OF HEARING, I.E. 11.04.2017 HAS BEEN DECLA RED IN THE OPEN COURT, NO NOTICES ARE REQUIRED TO BE ISSUED BY THE REGISTR Y. 7. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD FEBRUARY, 2017. SD/ - SD/ - (AMIT SHUKLA) (JASON P. BOAZ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 3 RD FEBRUARY, 2017 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -I, THANE 4. THE CIT, CIRCLE-1, KALYAN, THANE 5. THE DR, H BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.