MANOHARI & CO., V. ITO WD 27(8),

MA 606/MUM/2011

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0934 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-09-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 06-09-2013
• Assessment Year: 1998-1999
• Appeal Filed On: 29-12-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K SINGH
• Assessee Lawyers: FIROZE ANDHYARUJINA

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, M UMBAI BEFORE S/SHRI B.R.MITTAL,(JM) AND RAJENDRA SINGH, (AM) . . , , ' MISCELLANEOUS APPLICATION NO.606/MUM/2011 (ARISING OUT OF ./I.T.A. NO.3243/MUM/2002 ( !$ $ / ASSESSMENT YEAR:1998-99) M/S MANOHARI AND CO., 3/3/11, NAVJIVAN COMMERCIAL PREMISES, LAMINGTON ROAD, MUMBAI-400008 / VS. INCOME TAX OFFICER, WA RD 27 (8), PIRAMAL CHAMBERS, LALBAUG, MUMBAI-400012. ./ ./PAN/GIR NO. : AAIFM2839F ( * / APPELLANT) .. ( +,* / RESPONDENT) * / APPELLANT BY : SHRI FIROZE ANDHYARUJINA +,* . /RESPONDENT BY : SHRI S.K.SINGH . 2 / DATE OF HEARING : 6.9.2013 . 2 /DATE OF PRONOUNCEMENT : 13.9.2013 / O R D E R PER B.R.MITTAL, JM: BY THIS MISCELLANEOUS APPLICATION U/S 254 (2) OF THE ACT, ASSESSEE HAS PRAYED TO RECALL EX-PARE ORDER PASSED BY THE TRIBUNAL DAT ED 30.11.2005 PASSED IN ITA NO.3243/MUM/2002 FOR ASSESSMENT YEAR 1998-99. 2. IN THE APPLICATION, THE ASSESSEE HAS STATED THAT THE ASSESSEE WAS NOT SERVED WITH NOTICE FIXING DATE OF HEARING AS THE ADDRESS HAD CH ANGED. IT IS FURTHER STATED THAT ONE OF THE PARTNERS NAMELY SHRI MANOHAR GUNJAL PASSED AWAY ON 1.9.2006. THAT THE ASSESSEE HAS COME TO KNOW OF THE ORDER PASSED BY THE TRIBUNAL WHEN THE ASSESSEE RECEIVED NOTICE ISSUED BY TAX RECOVERY OFFICER FO R RECOVERY. HENCE, THIS APPLICATION MISCELLANEOUS APPLICATION NO.606/MUM/2011 2 HAS BEEN FILED ON 29.12.2011 PRAYING TO RECALL THE EX-PARTE ORDER PASSED BY THE TRIBUNAL. 3. AT THE TIME OF HEARING, LD. AR REITERATED THE A BOVE FACTS. HE HAS SUBMITTED THAT FILING OF AN APPEAL BY ASSESSEE IS AN INHERENT RIG HT AND THE CIRCUMSTANCES HAVE TO BE CONSIDERED WHICH LED TO PASSING THE EX-PARTE ORDER BY THE TRIBUNAL. LD. AR SUBMITTED THAT IN VIEW OF ABOVE FACTS, EX-PARTE ORDER BE REC ALLED AND THE APPEAL BE HEARD ON MERITS. 4. ON THE OTHER HAND, LD. DR SUBMITTED THAT THE APP LICATION FILED BY ASSESSEE IS BARRED BY LIMITATION AS THE SAME HAS BEEN FILED AFT ER A PERIOD OF MORE THAN 6 YEARS. HE FURTHER SUBMITTED THAT THE TRIBUNAL SENT THE NOTI CE TO THE ASSESSEE AT THE ADDRESS AS GIVEN BY ASSESSEE IN FORM NO.36 OF THE APPEAL MEMO AND THEREFORE, IN THE FACTS OF THE CASE, THE APPLICATION FILED BY THE ASSESSEE IS REQU IRED TO BE DISMISSED IN-LIMINE BEING BARRED BY LIMITATION. 5. WE HAVE CAREFULLY CONSIDERED THE CONTENTS OF MIS CELLANEOUS APPLICATION AND SUBMISSIONS OF LD. REPRESENTATIVES OF PARTIES. WE HAVE ALSO PERUSED THE MATERIAL FILED BEFORE US. WE OBSERVE THAT THE TRIBUNAL SENT THE NO TICE TO THE ASSESSEE AT THE ADDRESS AS GIVEN IN COLUMN NO.10 OF FORM NO.36, BUT THE S AID NOTICE WAS RECEIVED BACK BY THE OFFICE OF TRIBUNAL UN-SERVED. IT IS A FACT THA T NO OTHER ADDRESS HAS BEEN GIVEN BY ASSESSEE TO THE TRIBUNAL. THEREFORE, TRIBUNAL PAS SED EX-PARTE ORDER DISMISSING THE APPEAL OF ASSESSEE FOR NON-PROSECUTION. WE OBSER VE THAT MERELY FILING OF AN APPEAL IS NOT ENOUGH, IT IS DUTY OF THE ASSESSEE TO EFFECTIV ELY PURSUE THE APPEAL AS OBSERVED BY THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. B.N.BHATTARCHARGEE AND ANOTHER, 118 ITR 460, PAGES 477 AND 478. WE ALSO OBSERVE O N THE BASIS OF FACTS ON RECORD THAT THE ASSESSEE HAS NOT CARED TO ASCERTAIN THE STATUS OF THE APPEAL FILED BEFORE THE TRIBUNAL FOR SIX YEARS (APPROXIMATELY) AS THE TRI BUNAL PASSED THE ORDER ON 30.11.2005 AND THE ASSESSEE HAS FILED THIS MISC. APPLICATION F OR RECALLING OF THE SAID ORDER OF THE TRIBUNAL ON 29.12.2011. THE PLEA OF THE ASSESSEE THAT ONE OF THE PARTNERS HAD DIED IN SEPTEMBER 2006 DOES NOT MITIGATE THE RESPONSIBILITY OF THE SURVIVING PARTNERS PARTICULARLY WHEN THE FIRM IS IN EXISTENCE EVEN N OW. IN VIEW OF ABOVE FACTS, WE ARE OF THE CONSIDERED VIEW THAT IT IS NOT A FIT CASE TO CO NDONE THE DELAY IN FILING MISC. APPLICATION AFTER A GAP OF 6 YEARS FROM THE DATE OF ORDER PASSED BY THE TRIBUNAL. HENCE, MISCELLANEOUS APPLICATION NO.606/MUM/2011 3 MISC. APPLICATION FILED BY ASSESSEE IS BARRED BY LI MITATION. THEREFORE, MISC. APPLICATION IS DISMISSED. 6. IN THE RESULT, THE MISC. APPLICATION OF THE ASSE SSEE-APPLICANT IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13TH SEPTEM BER, 2013. . 7 8 13TH SEPTEMBER, 2013 . SD /- SD/- ( / RAJENDRA SINGH) ( . . , /B.R.MITTAL) / ACCOUNTANT MEMBER ! / JUDICIAL MEMBER MUMBAI; 8 DATED 13 /09/2013 . ! . ./ SRL , SR. PS & '( )( / COPY OF THE ORDER FORWARDED TO : 1. * / THE APPELLANT 2. +,* / THE RESPONDENT. 3. = ( ) / THE CIT(A)- 4. = / CIT 5. > +!!@ , 2 @ , / DR, ITAT, MUMBAI 6. $ / GUARD FILE. TRUE COPY / BY ORDER, (ASSTT. REGISTRAR) , / ITAT, MUMBAI