BALAJI UNIVERSAL TRADELINK PVT. LTD., MUMBAI V. DCIT - CC- 7(1), MUMBAI

MA 633/MUM/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4196 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-05-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 29-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “B" BENCH, MUMBAI BEFORE SHRI PAVAN KUMAR GADALE, HON'BLE JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, HON'BLE ACCOUNTANT MEMBER MA.No. 633/MUM/2019 [ARISING OUT OF ITA.No. 3598/MUM/2018 (A.Y. 2009-10)] M/s. Balaji Universal Tradelink Pvt. Ltd., 118/120, 3 rd Floor Ashoka House Zaveri Bazar Mumbai - 400002 PAN: AABCL0236H v. DCIT – Central Circle – 7(1) Mumbai (Appellant) (Respondent) Assessee by : Shri N.M. Porwal & Shri Anand Khuteta Department by : Shri T. Sankar Date of Hearing : 22.04.2022 Date of Pronouncement : 26.05.2022 O R D E R PER S. RIFAUR RAHMAN (AM) 1. Through this Miscellaneous Application assessee is seeking for recall of the exparte order passed by the Tribunal in ITA.No. 3598/Mum/2018 dated 22.11.2019. MA.No. 633/MUM/2019 M/s. Balaji Universal Tradelink Pvt. Ltd., 2 2. At the time of hearing, Ld. AR submitted that non-appearance of the assessee on the date of hearing was not due to negligence on its part nor any willful default but was solely due to the reason beyond the control of the assessee. Ld. AR filed an affidavit mentioning the reasons for non-appearance on the date of hearing which is reproduced below: - “1. That 1 state that I received Hon'ble Vice President's letter dated 17 th October, 2019 addressed to Shri. K. Gopal, Honorary Secretary, ITAT Bar Association, Mumbai. 2. That I state that I replied the said letter vide my letter dated 24 th October, 2019 along with statement furnishing the desired information in the following columns along with my notes as under: S.No. Name of the assessee ITANos. Bench Date of hearing Requested date 3 Balaji Bullion & Commodities P. Ltd 1291/M/18 “B" 31.10.2019 5th Dec. 2019 4 Balaji Universal Tradelink P. Ltd 1292/M/18 “B” 31.10.2019 19th Dec. 2019 Notes S.No.4, Balaji Universal Tradelink Pvt. Ltd may kindly be consolidated with another appeal of the same assessee and for the same assessment ear i.e. ITA No.3598/M/18 presently fixed for hearing on 5" November, 2019. Both the following appeals of the same assessee and for the same assessment year may kindly be consolidated and fixed for hearing on 19 th December 2019 as under: S.No. Name of the assessee ITANos. Bench Date of hearing Requested date A Balaji Bullion & Commodities P. Ltd 1291/M/18 “B" 31.10.2019 19 th Dec. 2019 B Balaji Universal Tradelink P. Ltd 1292/M/18 “B” 05.11.2019 19 th Dec. 2019 3. That I state that I did not receive any communication/reply as to whether my request for consolidation in the case of M/s. Balaji Universal Tradelink Pvt. Ltd both for the same assessee and for the same assessment year 2009-10 has been rejected. It is, therefore, I was under the bona-fide belief that my request for consolidation has been granted. It is, therefore, I did not appear on 5 November, 2019 MA.No. 633/MUM/2019 M/s. Balaji Universal Tradelink Pvt. Ltd., 3 in the case of M/s. Balaji Universal Tradelink Pvt. Ltd ITA No.3598/M/18. 4. That I state that I did not receive any fresh Notice dated 5 th November, 2019 communicating the applicant Company that the matter has been adjournmed to 13 th November, 2019 So far upto 25" December, 2019. Therefore, I could not appear even on 13" November, 2019 when the matter was adjourned by the Hon’ble Bench. I should not be held responsible for the lapse on the part of Postal Authorities. Till date, neither myself nor my client M/s. Balaji Universal Tradelink Pvt. Ltd has received any fresh notice fixing the the matter has been adjourned to 13 th hearing on 13" November, 2019. 5. That I state that the Hon’ble Tribunal did not give the applicant company to the appeal an effective opportunity of being heard on 5" November, 2019 because applicant company advocate’s letter dated 24 October, 2019 was never replied that consolidation request for same assessee and same assessment year has been rejected. Therefore, the applicant company was under the bona-fide belief that consolidation request in absence of any reply has been granted. 6. That I state that the Hon’ble Tribunal did not give the applicant company to the appeal an effective opportunity of being heard on 13 th November, 2019 because the fresh notice issued on 5 th November, 2019 communicating the applicant company that the matter has been adjourned to 13 th November, 2019 has not been received by the applicant company or its advocate so far upto 25 th December, 2019. 7. That I state that the conclusion reached by the Hon’ble bench that the appellant company is no longer interested in pursuing its appeal does not appear to be correct for the following reasons: (A) If the Appellant Company was not interested in pursuing its appeal, it would not have applied for consolidation vide my letter dated 24 th October, 2019 for both the appeals of the same assessee and same assessment year i.e. 2009-10 of M/s. Balaji UniversalTradelink Pvt. Ltd. (B) Fresh notice sent on 5 th November, 2019 that the appeal is adjourned to 13 November, 2019 has not been received by the applicant company or myself so far. (C) I am filing the Misc. Application within 3-4 weeks from the date of receipt of the order shows that the appellant company is quite serious in pursuing its appeal.” MA.No. 633/MUM/2019 M/s. Balaji Universal Tradelink Pvt. Ltd., 4 In view of above submissions, Ld. Counsel for the assessee prayed for recall of the exparte order in the interest of the justice as there is sufficient cause for non-appearance of the assessee. 3. On the other hand, Ld.DR did not make any objections for recall of the order. 4. Considering the submissions of both the parties and verifying the records and the contents of the affidavit filed along with Miscellaneous Application, we are of the view that the appeal should be recalled and an opportunity to the assessee to represent its case should be given to meet the principle of natural justice. Thus, we recall the exparte order passed by the Tribunal in ITA.No. 3598/Mum/2018 dated 22.11.2019. The Registry is directed to post the appeal for hearing in due course after issuing notice to both parties. 5. In the result, Miscellaneous Application filed by the assessee is allowed. Order pronounced in the open court on 26 th May, 2022 Sd/- Sd/- (PAVAN KUMAR GADALE) (S. RIFAUR RAHMAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai / Dated 26.05.2022 Giridhar, Sr.PS MA.No. 633/MUM/2019 M/s. Balaji Universal Tradelink Pvt. Ltd., 5 Copy of the Order forwarded to: 1. The Appellant 2. The Respondent. 3. The CIT(A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// BY ORDER, (Asstt. Registrar) ITAT, Mum