MAHENDRA BROTHERS, MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 8(2), MUMBAI

MA 541/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0288 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 10-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

1 MAS 422, 423 & 424/UM/2018 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH 'C', MUMBAI BEFORE SHRI SAKTIJIT DEY(JUDLCLAL MEMBER) AND SHRI G MANJUNATHA (ACCOUNTANT MEMBER) M.A. NO.541/MUM/2018 (ARISING OUT OF I.T.A NO.3054/MUM/2016 (ASSESSMENT YEAR: 2006-07) & MA. NO.542/MUM/2018 (ARISING OUT OF I.T.A NO.3055/MUM/2016 (ASSESSMENT YEAR: 2007-08) & M.A. NO.543/MUM/2018 (ARISING OUT OF I.T.A NO.3056/MUM/2016 (ASSESSMENT YEAR. 2010-11) M/S MAHENDRA BROTHERS NO. 1201 -A, SHATRUNJAYA DARSHAN CO-OP HSG SOCIETY, SHETH MOTISHA CROSS LANE, BYCULA (E), MUMBAI 400 027 PAN : AAAFM3726F VS DY.C IT, CENTRAL CIR.8(2), MUMBAI APPLICANT RESPONDENT APPLICANT BY SHRI NAVEEN KUMAR MISHRA, AR RESPONDENT BY SHRI NISHANT SAMIYA, SR, DR DATE OF HEARING 14-06-2019 DATE OF PRONOUNCEMENT 28-06-2019 ORDER PER, G MANJUNATHA, AM : THESE THREE MISCELLANEOUS APPLICATIONS FILED BY TH E ASSESSEE ARE DIRECTED AGAINST COMMON ORDER PASSED BY THE ITA T, MUMBAI BENCH 'C' IN ITA NOS.3054/MUM/2016, 3055/MUM/2016 & 3056/MUM/2016 FOR ASSESSMENT YEARS 2006-07, 2007-08 AND 2010-11 VIDE CONSOLIDATED ORDER DATED 21-09-2017. THE ASSES SEE HAS FILED THESE 2 MAS 422, 423 & 424/UM/2018 MISCELLANEOUS APPLICATIONS BY STATING THAT CERTAIN MISTAKES CREPT IN THE ORDER PASSED BY ITAT WHICH NEEDS TO BE RECTIFIED U/ S 254(2) OF THE INCOME-TAX ACT, 1961. THE ASSESSEE HAS NARRATED MIS TAKES STATED TO BE APPARENT IN THE ORDER OF THE TRIBUNAL DATED 21-09-2 017, AS PER WHICH THE TRIBUNAL HAD HEARD THE APPEALS EX-PARTE WITHOUT CON SIDERING ADJOURNMENT LETTER FILED BY THE ASSESSEE DATED 19-0 9-2017, SEEKING ADJOURNMENT FOR HEARING ON 20-09-2017. THE ASSESSEE FURTHER STATED THAT ITS COUNSEL WAS OUT OF STATION FOR SOME URGENT WORK ON 20-09-2017. THE TRIBUNAL WITHOUT CONSIDERING ITS APPLICATION FO R ADJOURNMENT POSTED THE CASES FOR HEARING ON 21-09-2017. THE ASSESSEE W AS NOT AWARE OF NEXT DATE OF HEARING THEREFORE IT COULD NOT ATTEND FOR HEARING ON 21-09- 2017. THE ASSESSEE FURTHER STATED THAT DISPOSAL OF APPEAL WITHOUT GIVING OPPORTUNITY OF HEARING TO ASSESSEE, DESPITE AN APPL ICATION FOR ADJOURNMENT CONSTITUTES A MISTAKE APPARENT FROM REC ORD WHICH NEEDS TO BE RECTIFIED U/S 254(2) OF THE IT. ACT, 1961. THERE FORE, IN THE INTEREST OF JUSTICE, APPEALS MAY BE RECALLED AND FRESH DATE OF HEARING MAY BE GIVE TO THE ASSESSEE TO JUSTIFY ITS CASE ON MERITS. 2. THE ID. DR STRONGLY OPPOSED MISCELLANEOUS APPLIC ATIONS FILED BY THE ASSESSEE. 3. WE HAVE HEARD BOTH PARTIES, PERUSED MISCELLANEOU S APPLICATIONS ALONG WITH ORDER OF THE TRIBUNAL DATED 21-09-2017. WE FIND THAT INITIALLY, THE CASES WERE POSTED FOR HEARING ON 18-09-2017, BU T THE ASSESSEE 3 MAS 422, 423 & 424/UM/2018 NEITHER APPEARED NOR FILED APPLICATION FOR ADJOURNM ENT AND HENCE, THE CASES WERE POSTED ON 20-09-2017. ON 20-09-2017, THE ASSESSEE HAD FILED APPLICATION FOR ADJOURNMENT AND CASES WERE AD JOURNED TO 21-09- 2017. ON 21-09-2017, THE ASSESSEE ONCE AGAIN FAILED TO ATTEND FOR HEARING, THEREFORE, THE TRIBUNAL HAD DISPOSED OF AP PEALS EX-PARTE FOR NON PROSECUTION, HOWEVER DECIDED ISSUES ON MERITS. THE ASSESSEE EXPLAINED REASONS FOR NON APPEARANCE AS PER WHICH THE COUNSEL WAS OUT OF TOWN BECAUSE OF URGENT WORK AND ALSO IT WAS NOT AWARE OF NEXT DATE OF HEARING. WE FIND THAT NO ONE WOULD GET ANY BENEFIT BY NOT ATTENDING FOR HEARING RATHER IT WILL CAUSE IRREPARABLE LOSS, IF T HE CASE GOES AGAINST THE PERSON WHO FILED APPEAL. THEREFORE, BY KNOWINGLY NO BODY WOULD COMMIT THIS KIND OF MISTAKES. THE REASON FOR NOT ATTENDING HEARING IS BECAUSE OF ITS COUNSEL URGENT WORK. ALTHOUGH, THE ASSESSEE COU LD HAVE ATTENDED PERSONALLY AND SOUGHT ADJOURNMENT, BUT FACT REMAINS THAT IT WAS NOT AWARE OF NEXT DATE OF HEARING. IT IS IMPRACTICAL TO EXPECT SOMEONE TO BE PRESENT WITHOUT ANY COMMUNICATION. THEREFORE, CONSI DERING REASONS GIVEN BY THE ASSESSEE FOR NON APPEARANCE AND ALSO T O GIVE ONE MORE OPPORTUNITY OF HEARING TO THE ASSESSEE, WE RECALLED ORDER OF THE TRIBUNAL DATED 21-09-2017. THE REGISTRY IS DIRECTED TO FIX T HE APPEALS FOR HEARING IN DUE COURSE AND INFORM BOTH SIDES, 4. IN THE RESULT, MISCELLANEOUS APPLICATIONS FIL ED BY THE ASSESSEE FOR ALL 4 MAS 422, 423 & 424/UM/2018 THE THREE ASSESSMENT YEARS ARE A/LOWED IN TERMS OF OUR DISCUSSION HEREINABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH JUNE, 2019. SD/- SD/- (SAKTIJIT DEY) (G MANJUNATHA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT; 28 TH JUNE, 2019 PK/- COPY TO : 1. APPLICANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR /TRUE COPY/ ACCOUNTANT MEMBER BY ORDER SR.PS, /TAT, MUMBAI BY ORDER SR. PS, ITAT, MUMBAI