ALPESH POPATLAL RATHOD, MUMBAI V. INCOME TAX OFFICER 25(1)(3), MUMBAI

MA 64/MUM/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6764 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 30-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POOJA SWAROOP
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER MA NO.64/M/2018 (ARISING OUT OF ITA NO.1391/M/2014) ASSESSMENT YEAR: 2005-06 M/S. ALPESH POPATLAL ROTHOD, 1204-1205, KENT GARDENS, TPS ROAD, BORIVALI WEST, MUMBAI 400 092 PAN: AHUPR6460Q VS. ITO WARD 25(1)(3), MUMBAI (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : SHRI SHAILESH PARMAR, A.R. REVENUE BY : SMT. POOJA SWAROOP, D.R. DATE OF HEARING : 08.06.2018 DATE OF PRONOUNCEMENT : 19.06.2018 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: BY WAY OF THIS MISCELLANEOUS APPLICATION, THE ASSE SSEE THE ASSESSEE SEEKS RECTIFICATION OF THE ORDER DATED 09.06.17 PASSED IN ITA NO.1391/M/2014. 2. THE LD AR SUBMITTED BEFORE THE BENCH THAT THE SA ID ORDER WAS PASSED EXPARTE BY THE TRIBUNAL DUE TO NON APPEA RANCE OF THE ASSESSEE ON THE DATE OF HEARING WHICH WAS NOT A TTRIBUTABLE TO THE ASSESSEE. THE LD. A.R. SUBMITTED THAT THE ASSES SEE HAS CHANGED HIS RESIDENCE TO 1204-1205, KENT GARDENS, TPS ROAD, BORIVALI WEST, MUMBAI-400 092 FROM THE EARLIER ONE A ND THEREFORE THE NOTICE FIXING THE DATE OF HEARING COU LD NOT BE MA NO.64/M/2018 (ARISING OUT OF ITA NO.1391/M/2014) M/S. ALPESH POPATLAL ROTHOD 2 RECEIVED AS THE SAME WAS DELIVERED AT THE OLD ADDRE SS. THE LD. A.R. SUBMITTED THAT THE ASSESSEE COULD NOT APPEAR ON THE SCHEDULED DATE OF HEARING BECAUSE HE HAS NOT RECEIV ED THE INTIMATION OF THE DATE OF HEARING AND THEREFORE THE SAME CONSTITUTE A REASONABLE CAUSE. THE REASONS AND CIRCUMSTANCES WERE BEYOND THE CONTROL OF THE ASSESS EE EVENTUALLY LEADING TO PASSING OF EX-PARTE ORDER. TH E LD. A.R. SUBMITTED THAT THE ASSESSEE CAME TO KNOW ABOUT THE EX-PARTE DISPOSAL OF APPEAL ONLY WHEN THE TAX RECOVERY STAFF VISITED THE RESIDENCE OF THE ASSESSEE IN CONNECTION WITH THE PA YMENT OF OUTSTANDING DUES. FINALLY, THE LD. A.R. PRAYED BEFORE THE BENCH THAT SINCE THE REASON AND CIRCUMSTANCES UNDER WHICH THE ORDER WAS PASSED EX-PARTE DUE TO NON APPEARANCE OF THE ASSESSEE WAS BEYOND THE CONTROL OF THE ASSESSEE AND THE ORDER PASSED EX-PARTE MAY PLEASE BE RECALLED SO THA T THE SAME IS PASSED AFTER HEARING THE ASSESSEE ON MERITS . 3. THE LD. D.R., ON THE OTHER HAND, OPPOSED THE SUBMISSIONS OF THE LD. A.R. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT TH E ASSESSEE COULD NOT APPEAR ON THE SCHEDULED DATE OF HEARING A ND THE APPEAL WAS DECIDED EX-PARTE BECAUSE. THE ASSESSEE C OULD NOT APPEAR ON THE SAID DATE BECAUSE THE NOTICE OF HEARI NG WAS SERVED ON THE OLD ADDRESS WHEREAS THE ASSESSEE HAS SHIFTED TO A NEW RESIDENTIAL ADDRESS AS STATED HEREINABOVE. UNDOUBTEDLY, WE ARE OF THE FIRM BELIEF THAT THE APPE AL SHOULD BE DISPOSED OF AFTER HEARING BOTH THE PARTIES ONLY THEN THE MA NO.64/M/2018 (ARISING OUT OF ITA NO.1391/M/2014) M/S. ALPESH POPATLAL ROTHOD 3 INTEREST OF JUSTICE WOULD BE SERVED AND THE INTENT AND PURPOSE OF PROVIDING FOR THE APPELLATE MECHANISM WOULD BE ACCOMPLISHED. HOWEVER, IN THE PRESENT CASE, WE FIND T HAT THE ASSESSEE HAS NOT INTIMATED THE SHIFTING OF HIS ADDR ESS TO THE REGISTRY SECTION AND THEREFORE THE NOTICE WAS ISSUE D ON THE OLD ADDRESS. THUS, THE NON SERVICE OF NOTICE WAS ATTRIBU TED TO THE FAILURE OF THE ASSESSEE TO PROVIDE AND FILE THE NEW ADDRESS BEFORE THE REGISTRY OF THE TRIBUNAL. THEREFORE, UND ER THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ASSESSEE SHOULD BE LEVIED SOME REASONABLE COST FOR THE SAID FAILURE W HICH WOULD ALSO ACT AS DETERRENT FOR SUCH CASUAL APPROACH. AC CORDINGLY, WE IMPOSE A COST OF RS.5000/- ON THE ASSESSEE WHICH WE CONSIDER TO BE MOST REASONABLE IN THE PRESENT SCENA RIO TO BE DEPOSITED IN THE PM RELIEF FUND WITHIN A WEEKS TIM E. SUBJECT TO THIS CONDITION, WE ARE INCLINED TO RECALL THE ORD ER DATED 09.06.2017. 5. IN THE RESULT, MISCELLANEOUS APPLICATION IS ALLOW ED. ORDER PRONOUNCED IN THE OPEN COURT ON 19.06.2018. SD/- SD/- (SAKTIJIT DEY) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 19.06.2018. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI MA NO.64/M/2018 (ARISING OUT OF ITA NO.1391/M/2014) M/S. ALPESH POPATLAL ROTHOD 4 THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ ASSTT. REGISTRAR, ITAT, MUMBAI.