SANJAY BADANI, MUMBAI V. ACIT 10(3), MUMBAI

MA 634/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 7630 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 30-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MICHAEL JERALD
• Keywords: Search and seizure; Bonafide belief; Additional evidence; Reasonable cause; Set aside

Judgement Text

SANJAY BADANI ACIT 10(3)[NOW 15(2)(1), MUMBAI M.A NO. 634/MUM/2019 A.Y 2009 - 10 (ARISING OUT OF ITA NO. 982/MUM/2016) 1 IN THE IN COME TAX APPELLATE TRIBUNAL G BENCH, M UMBAI BEFORE SHRI SHAMIM YAHYA, AM AND SHRI RAVISH SOOD, JM M.A. NO. 634 /MUM/2019 (ARISING OUT OF ITA NO. 982 /MUM/201 6 ) ( / ASSESSMENT YEAR: 2009 - 10) SANJAY BADANI UNIT NO. 405 HIND RAJASTHAN CENTRE, D.S PHALKE ROAD, DADAR (EAST), MUMBAI 400 014. / VS. ACIT 10(3)[NOW 15(2)(1)], AAYKAR BHAVAN MUMBAI . ./ ./ PAN NO. AABPB9926B ( / APPLICANT) : ( / RESPONDENT ) / APPLICANT BY : SHRI. MARGAV SHUKLA , A.R / RESPONDENT BY : SHRI. MICHAEL JERALD , D.R / DATE OF HEARING : 21.02 .2020 / DATE OF PRONOUNCEMENT : 01 . 06.2020 / 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 MR. SANJAY BAD A NI VS. ACIT 10(3), MUMBAI [NOW KNOWN AS 15(2)(1)] IN ITA NO. 982 /MUM/201 6 , DATED 28.08 .2019 FOR ASSES SMENT YEAR 2009 - 10. 2. IT WAS SUBMITTED BY THE LD. AUTHORISED REPRESENTATIVE (FOR SHORT A.R) FOR THE ASSESSEE THAT AS THE ASSESSEE HAD FAILED TO PUT UP AN APPEARANCE AT THE TIME OF HEARING OF THE APPEAL, THEREFORE, SANJAY BADANI ACIT 10(3)[NOW 15(2)(1), MUMBAI M.A NO. 634/MUM/2019 A.Y 2009 - 10 (ARISING OUT OF ITA NO. 982/MUM/2016) 2 THE SAME WAS PROCEEDED WITH AND DISPOSE D OFF BY THE TRIBUNAL BY WAY OF AN EX - PARTE ORDER DATED 28.08 .2019. THE LD. A.R TOOK US THROUGH THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE. IT IS STATED BY THE ASSESSEE THAT AS CERTAIN ISSUES PERTAINING TO INCOME FROM HOUSE PROPERTY WERE SET ASIDE BY THE CIT(A) TO THE FILE OF THE A.O, THEREFORE, THE BENCH DURING THE COURSE OF THE PREVIOUS HEARINGS HAD DIRECTED THAT THE COPY OF THE ORDER PASSED BY THE A.O BE PLACED ON RECORD. IT IS FURTHER STATED BY THE ASSESSEE THAT TILL DATE NO ORDER GIVING E FFECT TO THE DIRECTIONS OF THE CIT(A) HAD BEEN PASSED BY THE A.O. IN THE BACKDROP OF THE AFORESAID FACTS, IT IS STATED BY THE ASSESSEE THAT BEING UNDER A BONAFIDE BELIEF THAT THE TRIBUNAL WOULD TAKE UP THE MATTER FOR HEARING ONLY AFTER THE AFORESAID ORDER WOULD BE PASSED BY THE A.O, NO APPEARANCE WAS PUT UP BY HIM BEFORE THE TRIBUNAL ON THE STIPULATED DATE. AT THE SAME TIME, IT WAS SUBMITTED BY THE LD. A.R THAT EXCEPT FOR ON THE SAID LAST OCCASION I.E ON 19.08.2019, THE ASSESSEE APPELLANT WAS DULY REPRESENT ED DURING THE COURSE OF THE EARLIER HEARINGS OF THE APPEAL. IT IS FURTHER STATED BY THE ASSESSEE THAT AS AN APPLICATION FILED BY HIM SEEKING ADMISSION OF ADDITIONAL EVIDENCE HAD ALSO NOT BEEN CONSIDERED BY THE TRIBUNAL WHILE DISPOSING OFF THE APPEAL , THERE FORE, THE ORDER PASSED BY THE TRIBUNAL ALSO SUFFERED FROM A MISTAKE ON THE SAID COUNT . THE LD. A.R DRAWING OUR ATTENTION TO THE AFORESAID FACTS SUBMITTED THAT THE ORDER PASSED BY THE TRIBUNAL IN ALL FAIRNESS MAY BE RECALLED. 3 . PER CONTRA, T HE LD. DEPARTM ENTAL REPRESENTATIVE (FOR SHORT D.R) OBJECTED TO THE APPLICATION FILED BY THE ASSESSEE. 4 . 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 IN MR. SANJAY BAD A NI VS. ACIT 10(3 ), MUMBAI [NOW KNOWN AS 15(2)(1)] IN ITA NO. 982/MUM/2016, DATED 28.08.2019 FOR ASSESSMENT YEAR 2009 - 10 , THE ASSESSEE DESPITE HAVING BEEN PUT TO NOTICE ABOUT THE HEARING OF THE APPEAL , HAD HOWEVER , FAILED TO PUT UP AN APPEARANCE ON THE STIPULATED DATE , AS A RESULT WHEREOF THE TRIBUNAL WAS CONSTRAINED TO PROCEED 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 ASSESSEE FOR NOT PUT TING UP AN APPEARANCE /BEING REPRESENTED AT THE TIME OF HEARING OF THE APPEAL . AS OBSERVED BY US HEREINABOVE, IT IS SUBMITTED BY THE ASSESSEE THAT SANJAY BADANI ACIT 10(3)[NOW 15(2)(1), MUMBAI M.A NO. 634/MUM/2019 A.Y 2009 - 10 (ARISING OUT OF ITA NO. 982/MUM/2016) 3 AS HE WAS UNDER A BONAFIDE BELIEF THAT THE TRIBUNAL WOULD TAKE UP THE HEARING OF THE APPEAL ONLY AFTER THE A.O WOULD PASS A N ORDER GIVING EFFECT TO THE DIRECTIONS OF THE CIT(A), THEREFORE, HE HAD NOT PUT UP AN APPEARANCE /WAS REPRESENTED ON THE STIPULATED DATE ON WHICH THE APPEAL WAS FIXED FOR HEARING. IN OUR CONSIDER ED VIEW THE BONAFIDES OF THE AFORESAID REASON GIVEN BY THE ASSESSEE FOR THE FAIL URE ON HIS PART TO PUT UP AN APPEARANCE ON THE DATE OF HEARING OF THE APPEAL , WHEN STUDIED ALONGWITH THE FACT THAT THE ASSESSEE HAD IN THE COURSE OF THE EARLIER HEARINGS OF THE APPEAL DULY APPEARED BEFORE THE TRIBUNAL , STANDS ESTABLISHED . AS SUCH, WE ARE OF THE CONSIDERED VIEW THAT AS THERE WAS A REASONABLE CAUSE AS REGARDS THE FAILURE ON THE PART OF THE ASSESSEE TO APPEAR BEFORE THE TRIBUNAL ON THE STIPULATED DATE WHEN THE APPE AL WAS CALLED ON FOR HEARING I.E ON 19.08.2019 , THEREFORE, WE SET ASIDE THE AFORESAID EX - PARTE ORDER PASSED BY THE TRIBUNAL IN MR. SANJAY BAD A NI VS. ACIT 10(3), MUMBAI [NOW KNOWN AS 15(2)(1)] IN ITA NO. 982/MUM/2016, DATED 28.08.2019 FOR ASSESSMENT YEAR 20 09 - 10 AND RESTORE THE APPEAL. INSOFAR THE CLAIM OF THE ASSESSEE THAT AS THE TRIBUNAL HAD NOT DISPOSED OFF ITS APPLICATION WHEREIN HE HAD SOUGHT ADMISSION OF ADDITIONAL EVIDENCE, THEREFORE, ITS ORDER SUFFER ED FROM A MISTAKE APPARENT FROM RECORD ON THE SAID COUNT ALSO, WE ARE AFRAID THE SAME DOES NOT FIND FAVOUR WITH US. IN OUR CONSIDERED VIEW, THE MERE FILING OF AN APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE DOES NOT IPSO FACTO VESTS ANY INHERENT RIGHT AS REGARDS MAINTAINABILITY OF THE SAME WITH THE ASSESSEE. IN FACT, THE MAINTAINABILITY OF AN APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE IS REGULATED BY RULE 29 OF THE APPELLATE TRIBUNAL RULES, 1963. AS THE APPEAL HAS BEEN RESTORED, THEREFORE, THE ASSES SEE WOULD REMAIN AT A LIBERTY TO SEEK ADMISSION OF THE ADDITIONAL EVIDENCE, AS PER LAW. THE REGISTRY IS DIRECTED TO FIX THE APPEAL FOR HEARING ON 1 2 .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 (APPELLATE TRIBUNAL) RULES, 1962, BY PLACING THE DETAILS ON THE NOTICE BOARD. SD/ - SD/ - ( SHAMIM YAHYA ) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 01 . 06.2020 SANJAY BADANI ACIT 10(3)[NOW 15(2)(1), MUMBAI M.A NO. 634/MUM/2019 A.Y 2009 - 10 (ARISING OUT OF ITA NO. 982/MUM/2016) 4 / 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