UNI DERITEND LTD, MUMBAI V. ASST CIT RG 1(3), MUMBAI

MA 651/MUM/2018

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 1582 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2003-2004
• Appeal Filed On: 02-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATISH CHANDRA RAJORE
• Assessee Lawyers: DR K SHIVARAM
• Section: 13

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH , MUMBAI BEFORE SHRI JOGINDER SINGH , VICE PRESIDENT & SHRI RAJESH KUMAR , ACCOUNTANT MEMBER MISCELLANEOUS APPLICATION NO S . 651 &652 / MUM /201 8 (ARISING OUT OF ITA NOS .5379&5380/MUM/2012) ( / ASSESSMENT YEAR : 20 03 - 20 04 & 2004 - 2005 ) M/S UNI DERITEND LTD., LIBERTY BLDG., SIR VITHALDAS THACKERSEY MARG, MUMBAI - 400020 VS. ACIT - RG.1(3) , MUMBAI ./ PAN NO. : A A ACU 0028 K ( / APPELLANT ) .. ( / RESPONDENT ) /AS SESSEE BY : DR. K.SHIVARAM, AR /REVENUE BY : SHRI SATISH CHANDRA RAJORE , SR. CIT DR / DATE OF HEARING : 28 / 12 /201 8 / DATE OF PRONOUNCEMENT 01/01/2019 / O R D E R PER SHRI RAJESH KUMAR , A M : BY VIRTUE OF TH ESE TWO MISCELLANEOUS APPLICATION S , THE ASSESSEE SEEKS RECALLING OF THE ORDER DATED 31.07.2015 , PASSED BY THE TRIBUNAL IN ITA NOS.5379&5380/MUM/2012 FOR THE ASSESSMENT YEARS 2003 - 20 0 4 & 2004 - 05. 2. LD. AR BEFORE US SUBMITTED THAT ON THE DATE WHEN THE CASE WAS LISTED FOR HEARING, THE ASSESSEE HAD NOT KNOWN THAT THE CASE WAS ACTUALLY FIXED FOR HEARING AS THE NOTICE RECEIVED BY THE EMPLOYEE OF THE ASSESSEE , WHO INADVERTENTLY FORGOT TO INFORM THE SE NIORS IN THE OFFICE AND, THEREFORE, THE CASE WAS HEARD EX - PARTE . LD. AR FURTHER SUBMITTED THAT SINCE THE NON - ATTENDANCE OF HEARING WAS BEYOND THE CONTROL OF THE ASSESSEE, THEREFORE, THE ASSESSEE SHOULD NOT BE PENALIZED FOR THE SAME. MOREOVER, THE MA NOS.651&652/MUM / 1 8 2 PRINCIPL E OF JUSTICE AND EQUITY WARRANTS THAT NO ONE SHOULD BE CONDEMNED UNHEARD . IN THE PRESENT CASE , S INCE THE ASSESSEE H AS NOT BEEN HEARD , IT IS VEHEMENTLY PRAYED BEFORE THE BENCH THAT THE ORDER DATED 31.07.2015, PASSED IN ITA NOS. 5379&5380/MUM/2012 BY THE TRIB UNAL MAY PLEASE BE RECALLED, SO THAT THE ASSESSEE COULD BE GIVEN AN OPPORTUNITY OF HEARING. LD. AR IN ORDER TO EXPLAIN THE NON - ATTENDANCE ON THE DATE OF HEARING FILED AN AFFIDAVIT OF MR. JIMMY JEHANGIR PARAKH, THE DIRECTOR OF THE ASSESSEE COMPANY. 3. LD. D R, ON THE OTHER HAND, STRONGLY OPPOSED TO THE CONTENTION OF THE LD. AR BY SUBMITTING THAT DESPITE SERVICE OF NOTICE THROUGH RPAD, THE ASSESSEE DID NOT ATTEND THE HEARING AND, THEREFORE, THE ORDER SHOULD NOT BE RECALLED. 4. WE HAVE HEARD THE RIVAL SUBMISSIO NS OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. ON PERUSAL OF THE AFFIDAVIT FILED BY THE ASSESSEE IN SUPPORT OF ITS CONTENTIONS BEFORE THE BENCH ON THE DATE OF HEARING, WE ARE OF THE VIEW THAT THE NON - ATTENDANCE OF THE ASSESSEE ON THE APPOINTED DATE OF HEARING IS DUE TO INADVERTENT FAILU RE AS THE ASSESSEE WAS NOT KNOWING THE DATE ON WHICH THE CASE OF THE ASSESSEE WAS ACTUALLY FIXED FOR HEARING. IN OUR OPINION, THE ASSESSEE HAS RIGHTLY EXPLAINED THE NON - APPEARANCE BEFORE THE BENCH AND, THEREFORE, WE RECALL THE ORDER DATED 31.07.2015, PASSED IN ITA NOS.5379&5380/MUM/2012 AND DIRECT THE REGISTRY TO LIST BOTH THE APPEALS FOR HEARING ON 13 .02.2019 . MA NOS.651&652/MUM / 1 8 3 5 . IN THE RESULT, BOTH MISCELLANEOUS APPLICATIONS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED I N THE OPEN COURT ON 01/01/2019 SD/ - ( JOGINDER SINGH ) SD/ - (RAJESH KUMAR) / VICE PRESIDENT / ACCOUNTANT MEMBER MUMBAI ; DATED 01/01/2019 . . / PRAKASH KUMAR MISHRA , S R.PS. / COPY OF TH E ORDER FORWARDED TO : / BY ORDER, ( ASSISTANT REGISTRAR ) , / ITAT, MUMBAI 1. / THE APPELLANT - 2. / THE RESPONDENT - 3. ( ) / THE CIT(A), MUMBAI 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FI LE. //TRUE COPY//