JAWAHARAM N. DESAI, MUMBAI V. INCOME TAX OFFICER 26(1)(4), MUMBAI

MA 616/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 7631 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 05-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reasonable cause; Set aside
• Section: 72

Judgement Text

JAWAHARAM N. DESAI VS. ITO 26(1)(4), MUMBAI M.A NO. 616/MUM/2019 A.Y 2009 - 10 (ARISING OUT OF ITA NO. 3970/MUM/2018) 1 IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, M UMBAI BEFORE SHRI SHAMIM YAHYA, AM AND SHRI RAVISH SOOD, JM M.A. NO. 616 /MUM/201 9 (ARISING OUT OF ITA NO. 3970 /MUM/201 8 ) ( / ASSESSMENT YEAR: 2009 - 10) JAWAHARAM N. DESAI GALA NO. 28, BORI ESTAE, TILAK NAGAR, MUMBAI 400 0 72 / VS. INCOME TAX OFFICER WARD - 26(1)(4) KATYALYA BHAVAN, BKC, BANDRA, MUMBAI 400 0 52 ./ ./ PAN NO. AHQPD9818E ( / APPLICANT) : ( / RESPONDENT ) / APPLICANT BY : SHRI. S.L JAIN, A.R / RESPONDENT BY : MS. KAVITA KAUSHIK, D.R / DATE OF HEARING : 06.03.2020 / DATE OF PRONOUNCEMENT : 01. 06 .20 20 / O R D E R PER RAVISH SOOD, JM: THE PRESENT MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE ARISES FROM THE ORDER PASSED BY THE TRIBUNAL WHILE DISPOSING OFF HIS APPEAL I.E JAWAHARAM N. DESAI VS. ITO WARD - 26(1)(4) IN ITA NO. 3970 /MUM/201 8 , DATED 10.05.2019 FOR ASSESSMENT YEAR 2009 - 10 . 2. I T WAS SUBMITTED BY THE LD. AUTHORISED REPRESENTATIVE (FOR SHORT A.R) FOR THE ASSESSEE, THAT THE APPEAL OF THE ASSESSEE WAS DISMISSED BY THE TRIBUNAL VIDE ITS ORDER DATED 10.05.2019. IT WAS JAWAHARAM N. DESAI VS. ITO 26(1)(4), MUMBAI M.A NO. 616/MUM/2019 A.Y 2009 - 10 (ARISING OUT OF ITA NO. 3970/MUM/2018) 2 FURTHER SUBMITTED BY THE LD. A.R THAT THOUGH THE ASSESSEE HAD ENG AGED HIM FOR APPEARING BEFORE THE TRIBUNAL, HOWEVER, AS HE HAD UNDERGONE A SPINAL SURGERY THEREFORE , HE HAD FAILED TO PUT UP AN APPEARANCE AT THE TIME OF HEARING OF THE APPEAL. IN SUPPORT OF THE AFORESAID FACT THE LD. A.R TOOK US THROUGH AN AFFIDAVIT DAT ED 04.03.2020 OF THE ASSESSEE. IT WAS SUBMITTED BY THE LD. A.R THAT THE FAILURE ON HIS PART TO APPEAR ON THE STIPULATED DATE BEFORE THE TRIBUNAL HAD OCCASIONED DUE TO THE AFORESAID BONAFIDE AND UNAVOIDABLE CIRCUMSTANCES THAT WERE PREVAILING AT THE RELEVANT POINT OF TIME. IN THE BACKDROP OF THE AFORESAID FACTS, IT WAS SUBMITTED BY THE LD. A.R THAT AS THE RE WAS A SUFFICIENT CAUSE FOR THE NON - APPEARANCE ON BEHALF OF THE ASSESSEE AT THE TIME WHEN THE APPEAL WAS CALLED ON FOR HEARING, THEREFORE, THE ORDER DATED 10.05.2019 PASSED BY THE TRIBUNAL WHILE DISPOSING OFF THE SAID APPEAL MAY BE RECALLED AS PER THE PROVISO TO RULE 24 OF THE APPELLATE TRIBUNAL RULES, 1963. 4. THE LD. DEPARTMENTAL REPRESENTATIVE (FOR SHORT D.R) OBJECTED TO THE APPLICATION FILED BY THE A SSESSEE. 5. WE HAVE HEARD THE AUTHORISED REPRESENTATIVES FOR BOTH THE PARTIES AND ALSO PERUSED THE APPLICATION FILED BY THE ASSESSEE ALONG WITH THE MATERIAL AVAILABLE ON RECORD. AS IS DISCERNIBLE FROM THE ORDER PASSED BY THE TRIBUNAL I.E JAWAHARAM N. DESA I VS. ITO WARD - 26(1)(4) IN ITA NO.3970/MUM/2018, DATED 10.05.2019 FOR A.Y. 2009 - 10 , THE ASSESSEE DESPITE HAVING BEEN INTIMATED ABOUT THE HEARING OF THE APPEAL HAD HOWEVER FAILED TO PUT UP AN APPEARANCE, AS A RESULT WHEREOF THE TRIBUNAL WAS CONSTRAINED TO P ROCEED WITH THE MATTER AND DISPOSE OFF THE APPEAL AFTER HEARING THE RESPONDENT REVENUE AND PERUSING THE ORDERS OF THE LOWER AUTHORITIES . WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE REASON LEADING TO THE FAILURE ON THE PART OF THE LD. A.R TO PUT UP AN A PPEARANCE AT THE TIME OF HEARING OF THE APPEAL, WHICH AS OBSERVED BY US HEREINABOVE IS SUPPORTED BY AN AFFIDAVIT OF THE ASSESSEE. IN OUR CONSIDERED VIEW, THERE IS A REASONABLE CAUSE ON THE PART OF THE LD. A.R IN FAILING TO PUT UP AN APPEARANCE AT THE TIM E OF HEARING OF THE APPEAL ON 02.05.2019. AT THE SAME TIME, WE WOULD ALSO NOT HESITATE TO OBSERVE THAT THE LD. A.R UNDER THE AFORESAID CIRCUMSTANCES OUGHT TO HAVE MOVED AN APPLICATION FOR ADJOURNMENT OF THE HEARING OF THE APPEAL. BE THAT AS IT MAY, IN OUR CONSIDERED VIEW AS THERE I S A REASONABLE CAUSE FOR THE FAILURE ON THE PART OF THE ASSESSEE FOR BE ING REPRESENTED AT THE TIME OF HEARING OF THE APPEAL, THEREFORE, WE JAWAHARAM N. DESAI VS. ITO 26(1)(4), MUMBAI M.A NO. 616/MUM/2019 A.Y 2009 - 10 (ARISING OUT OF ITA NO. 3970/MUM/2018) 3 SET ASIDE THE AFORESAID EX PARTE ORDER PASSED BY THE TRIBUNAL IN JAWAHARAM N. DESAI VS. ITO WARD - 26(1)(4) IN ITA NO.3970/MUM/2018, DATED 10.05.2019 FOR A.Y. 2009 - 10 AND RESTORE THE APPEAL. THE REGISTRY IS DIRECTED TO FIX THE APPEAL FOR HEARING ON 10.08.2020 AND SERVE A NOTICE TO THE SAID EFFECT TO BOTH THE PARTIES. 5. THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED UNDER RULE 34(4) OF THE INCOME TAX (APPEL LATE TRIBUNAL) RULES, 1962, BY PLACING THE DETAILS ON THE NOTICE BOARD. SD/ - SD/ - ( SHAMIM Y AHYA ) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 01 . 06.2020 PS. ROHIT / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI