RAJHANS PAPER COMPANY, MUMBAI V. ITO -14(2)-3, MUMBAI

MA 638/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 3509 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-07-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 30-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R BHOOPATHI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER MA NO.638/M/2019 (ARISING OUT OF ITA NO.1237/M/2014) ASSESSMENT YEAR: 2009-10 M/S. RAJHANS PAPER COMPANY, 10 GAZDAR STREET, 2/22 SHREE RAM NIWAS, 2 ND FLOOR, ROOM NO.22, CHIRA BAZAR, J.S.S. ROAD, MUMBAI 400 002 PAN: AAAFFR 8622J VS. ITO- 14(2)-3, MUMBAI (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI RAHUL R. SARADA, A.R. SHRI ASHISH JAIN, A.R. REVENUE BY : SHRI R. BHOOPATHI, D.R. DATE OF HEARING : 28.02.2020 DATE OF PRONOUNCEMENT : 28.07.2020 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: BY VIRTUE OF THIS MISCELLANEOUS APPLICATION THE ASSESSEE SEEKS THE RECALLING OF THE ORDER PASSED BY THE TRIBUNAL IN ITA NO.1237/M/2014 AY 2009-10 DATED 25.04.2019. 2. THE LD. A.R. SUBMITTED BEFORE THE BENCH THAT THE SAID ORDER WAS PASSED BY THE TRIBUNAL EX-PARTE AS THE COUNSEL OF THE ASSESSEE COULD NOT APPEAR ON THE DATE APPOINTED FOR HEARING ON 23.04.2019. THE LD. COUNSEL OF THE ASSESSEE SUBMITTED BEFORE THE BENCH THAT THE EARLIER ORDER DATED 28.12.2016 WAS ALSO PASSED EX-PARTE. THE ASSESSEE VIDE MISCELLANEOUS APPLICATION MA NO.638/M/2019 (ARISING OUT OF ITA NO.1237/M/2014) M/S. RAJHANS PAPER COMPANY 2 NO.400/M/2017 PRAYED BEFORE THE BENCH TO RECALL THE SAID ORDER AND ACCORDINGLY THE ORDER WAS RECALLED AND REFIXED FOR HEARING ON MERITS VIDE ORDER DATED 25.09.2018 RECALLING THE CO- ORDINATE BENCH ORDER DATED 28.12.2016. ON 07.02.2019, THE DATE FIXED FOR HEARING, THE ASSESSEE THROUGH ITS PARTNER MR. SANJAY SATRA FILED A LETTER DATED 02.02.2019 ON 04.02.2019 REQUESTING FOR ADJOURNMENT BEFORE THE TRIBUNAL AND SOUGHT ADJOURNMENT. ACCORDINGLY, THE TRIBUNAL ADJOURNED THE HEARING OF THE APPEAL TO 23.04.2019. HOWEVER, THE DATE WAS WRONGLY NOTED AS 30.04.2019. ON 23.04.2019 AGAIN THE ORDER WAS PASSED EX-PARTE DISMISSING THE APPEAL OF THE ASSESSEE. NOW THE LD. A.R. PRAYED BEFORE US THAT SINCE THE NON ATTENDANCE WAS FOR THE REASONS WHICH ARE BEYOND THE CONTROL OF THE ASSESSEE AND CAN NOT BE ATTRIBED TO THE ASSESSEE AS THE DATE OF THE HEARING WAS WRONGLY NOTED BY THE PARTNER OF THE ASSESSEE FIRM AND NO FURTHER NOTICE WAS SERVED ON THE ASSESSEE SPECIFYING THE DATE OF HEARING AS 23.04.2019. THEREFORE, THE ASSESSEE WAS DEPRIVED OF ITS LEGITIMATE AND LAWFUL LEGAL RIGHTS TO REPRESENT THE CASE ON MERITS AS THE CASE WAS DECIDED EX-PARTE ON 23.04.2019. THE LD. A.R., THEREFORE, PRAYED THAT THE ASSESSEE MAY KINDLY BE GRANTED ONE MORE OPPORTUNITY TO REPRESENT ITS CASE BY RECALLING THE ORDER DATED 25.04.2019 BY RELYING ON THE ORDER DATED 20.10.2016 OF HONBLE HIMACHAL PRADESH HIGH COURT IN THE CASE OF DHARAM DUTT AND HARI SARAN AND ORS. CMPMO NO.4156 OF 2013. 3. THE LD. D.R., ON THE OTHER HAND, STRONGLY OPPOSED THE ARGUMENTS OF THE LD. A.R. BY SUBMITTING THAT THE ASSESSEE IS HABITUAL OF NOT ATTENDING THE PROCEEDINGS AS THIS IS THE SECOND MA NO.638/M/2019 (ARISING OUT OF ITA NO.1237/M/2014) M/S. RAJHANS PAPER COMPANY 3 TIME THE CASE WAS DECIDED EX-PARTE AND THEREFORE PRAYED BEFORE THE BENCH THAT MISCELLANEOUS APPLICATION MAY BE DISMISSED. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT IN THIS CASE THE ASSESSEE COULD NOT APPEAR ON THE DATE OF APPOINTED DATE FOR HEARING ON 23.04.2019 AS THE DATE OF HEARING WAS WRONGLY NOTED BY MR. SANJAY SATRA, A PARTNER IN THE ASSESSEE FIRM AS 30.04.2019. THE PARTNER OF THE ASSESSEE FIRM HAS ALSO FILED AN AFFIDAVIT AFFIRMING ALL THESE FACTS. IN OUR CONSIDERED VIEW THE ASSESSEE DESERVED TO BE GIVEN ONE MORE OPPORTUNITY OF HEARING SO THAT THE CASE COULD BE DISPOSED OF AFTER HEARING THE ASSESSEE ON MERITS IN THE INTEREST OF JUSTICE. THE CASE OF THE ASSESSEE IS SUPPORTED BY THE HONBLE SUPREME COURT DECISION IN THE CASE OF STATE OF NAGALAND VS. LIPOK AO & ORS. MANU/SC/0250/(2005) 3 SC CASES 752 WHEREIN THE HONBLE SUPREME COURT HAS HELD THAT WHERE SUBSTANTIAL JUSTICE AND TECHNICAL APPROACH ARE PITTED AGAINST EACH OTHER THEN THE FORMER HAS TO BE PREFERRED. THE HONBLE HIMACHAL PRADESH HIGH COURT IN ITA NO.4156/13 DATED 20.10.2016 HAS HELD THAT IT IS A SETTLED LAW THAT TECHNICALITIES OF LAW MAY NOT PREVENT THE COURT FROM DOING SUBSTANTIAL JUSTICE. THE COURT HELD THAT JUDICIARY IS NOT REPRESENTED ON ACCOUNT OF ITS POWER TO LEGALISE INJUSTICE ON TECHNICAL GROUND BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO BY MAKING JUSTICE ORIENTED APPROACH FROM THIS PERSPECTIVE. IN VIEW OF THE ABOVE FACTS, WE ARE INCLINED TO RECALL OUR ORDER DATED 25.04.2019 WITH THE DIRECTION TO THE REGISTRY TO LIST THE SAME BEFORE THE REGULAR BENCH FOR HEARING BENCH SUBJECT TO A FINE OF RS. 2,000/- WHICH MAY BE DEPOSITED IN PM RELIEF FUND BY THE ASSESSEE. MA NO.638/M/2019 (ARISING OUT OF ITA NO.1237/M/2014) M/S. RAJHANS PAPER COMPANY 4 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28.07.2020. SD/- SD/- (SAKTIJIT DEY) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 28.07.2020. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.