VIJAY OMKASMAL JAIN, V. ITO 22(2)4,

MA 53/MUM/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1135 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-11-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 22-11-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 05-02-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PITAMBAR DAS
• Keywords: Deemed dividend

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F, MUMBAI . .. . . . . . , !' !' !' !' , # # # # $ $ $ $ , % % % % !' !' !' !' & & & & BEFORE SHRI P M JAGTAP, AM AND SHRI SANJAY GARG, JM '#'# '#'# '#'# '#'# #!( #!( #!( #!( ./MA NO.53/MUM/2013 ( )* + )* + )* + )* + /ARISING OUT OF ITA NO.303/MUM/2010) ( %( $ %( $ %( $ %( $ #,$ #,$ #,$ #,$ / ASST.YEAR 2006-07) SHRI VIJAY OMKARMAL JAIN 34 GREEN GARDEN APARTMENTS, W T PATIL MARG, DEONAR, MUMBAI- 400 088 PAN : ADJPJ4093J VS. THE ITO 22(2)(4), MUMBAI ( #! #! #! #! / // / APPLICANT) ( ./01 ./01 ./01 ./01 /RESPONDENT) #! #! #! #! 2 22 2 3 3 3 3 /APPLICANT BY : SHRI ASHOK PATIL ./01 ./01 ./01 ./01 2 22 2 3 3 3 3 /RESPONDENT BY : SHRI PITAMBAR DAS (# (# (# (# 2 22 2 / DATE OF HEARING :22.11.2013. 45, 45, 45, 45, 2 22 2 / DATE OF PRONOUNCEMENT : 22.11.13. !6 !6 !6 !6 / O R D E R PER SANJAY GARG, JUDICIAL MEMBER : THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN MOVE D BY THE ASSESSEE FOR RECALLING/SETTING ASIDE THE EXPARTE ORDER DATED 21. 03.2012, WHICH WAS PASSED ON MERITS OF THE CASE. 2. THE ASSESSEE IN HIS APPLICATION HAS PLEADED THAT ON THE DATE OF HEARING HIS REPRESENTATIVE VIZ. SHRI HARESH R JOSHI WAS FEELING UNWELL ABOUT WHICH HE COULD NOT INFORM THE ASSESSEE AS WELL. HENCE, THE CASE REMAI NED UNREPRESENTED BEFORE THE TRIBUNAL ON THE DATE OF HEARING AND WAS DECIDED ON MERITS. MA NO.53//M/13 VIJAY OMKARMAL JAIN 2 3. WE HAVE HEARD THE REPRESENTATIVE OF THE PARTIES. IT MAY BE OBSERVED THAT BEFORE PROCEEDING TO DECIDE THE CASE ON MERITS, THE TRIBUNAL HAS MADE THE FOLLOWING OBSERVATIONS: THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDE RS OF THE CIT(A)-33, MUMBAI DATED 12.10.2009. THE ASSESSEE IS AGGRIEVED THAT THE CIT(A) HAD UPHELD THE ADDITION OF RS.5 LAKHS CONSIDERED AS DEEMED DIVIDEND UNDER SECTION 2(22)(E). THIS APPEAL OF THE ASSESSE E WAS ORIGINALLY DISMISSED FOR WANT OF PROSECUTION BY THE ASSESSEE V IDE THE ORDER DATED 9.9.2010. THE ASSESSEE PREFERRED A MISCELLAN EOUS APPLICATION DATED 1.3.2011 FOR RECALLING THE EARLIER ORDER VIDE THE ORDER DATED 7.9.2011. THE EARLIER ORDER WAS RECALLED AND APPEA L WAS RESTORED. SUBSEQUENTLY THIS CASE WAS POSTED FOR HEARING ON 15 .9.2011, 22.11.2011, 16.1.2012 AS NONE APPEARED ON BEHALF OF THE ASSESSEE. VIDE THE ORDER DATED 16.1.2012, THE CASE WAS ADJOUR NED TO 12/03/2012 AND A NOTICE WAS ISSUED TO BE SERVED BY RPAD. THIS NOTICE WAS SERVED ON 28.1.2012. WHEN THE CASE WAS CALLED FOR HEARING TODAY, NONE APPEARED FOR THE ASSESSEE AND T HERE WAS NO RESPONSE EVEN AFTER THE NOTICE WAS SERVED BY RPAD. THEREFORE, WE ARE OF THE OPINION THAT THE ASSESSEE IS NOT INTERES TED IN REPRESENTING THE CASE BEFORE THE ITAT AND ACCORDINGLY THE APPEAL WAS DECIDED ON MERITS EXPARTE ASSESSEE APPELLANT. FROM THE PERUSAL OF THE ABOVE OBSERVATIONS OF THE T RIBUNAL, IT IS CLEARLY REVEALED THAT THE ASSESSEE FROM THE VERY BEGINNING HAS REMAI NED NEGLIGENT AND DISINTERESTED IN PROSECUTING HIS APPEAL. FIRSTLY, THE APPEAL WAS DISMISSED IN DEFAULT OF HIS APPEARANCE BUT THE SAME WAS RESTORED ON HIS APPLICA TION. THEREAFTER, THE CASE AGAIN REMAINED UNREPRESENTED FOR SEVERAL TIMES AND FINALLY A REGISTERED NOTICE WAS SENT TO THE ASSESSEE TO APPEAR ON THE NEXT DATE OF HEARING. THE SERVICE OF THE SAID NOTICE HAS BEEN ADMITTED BY THE APPLICANT IN HIS PR ESENT APPLICATION ITSELF. HOWEVER, DESPITE SERVICE OF REGISTERED NOTICE, AGAI N NONE APPEARED ON THE DATE OF HEARING AND ULTIMATELY THE TRIBUNAL PROCEEDED TO DE CIDE THE CASE ON MERITS. THE REASONING GIVEN BY THE APPLICANT FOR NON-APPEARANCE ON THE SAID DATE OF HEARING NEITHER SEEMS TO BE SUFFICIENT NOR PLAUSIBLE. SUFF ICIENT OPPORTUNITIES HAD BEEN GIVEN TO THE APPLICANT/ASSESSEE TO PRESENT HIS CASE BEFOR E THE TRIBUNAL. BUT OVER THE TIME THE APPLICANT OR HIS REPRESENTATIVE DID NOT APPEAR ON THE DATES OF HEARING. UNDER THESE CIRCUMSTANCES, WE DO NOT FIND ANY MERIT IN TH E PRESENT APPLICATION OF THE ASSESSEE AND THE SAME IS HEREBY DISMISSED. MA NO.53//M/13 VIJAY OMKARMAL JAIN 3 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND NOVEMBER, 2013. SD/- SD/- (P M JAGTAP) (SANJAY GARG) !' !' !' !' / ACCOUNTANT MEMBER % !' % !' % !' % !' / JUDICIAL MEMBER MUMBAI; 7!( DATED : 22 ND NOVEMBER, 2013. SA !6 !6 !6 !6 2 22 2 .%8' .%8' .%8' .%8' 9', 9', 9', 9', / COPY OF THE ORDER FORWARDED TO : 1. #! /THE APPLICANT. 2. ./01 / THE RESPONDENT. 3. : ( ) / THE CIT(A) - 33, MUMBAI. 4. : / CIT 5. '#; .%%( , , / DR, F BENCH, ITAT, MUMBAI !6( / BY ORDER, /' .% //TRUE COPY// ) / < (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI