PMT MACHINES LTD., MUMBAI V. DCIT 2(2), MUMBAI

MA 67/MUM/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4798 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 16-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N PADMANABAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUM BAI BEFORE SHRI JASON P. BOAZ, AM AND SHRI SANDEEP GOSA IN, JM M.A. NO. 67/MUM/2016 (IN ITA NO.7526/MUM/2012) ( / ASSESSMENT YEAR: 2008-09) M/S PMT MACHINES LIMITED. 214, LINKWAY ESTATE, NEW LINK ROAD, MALAD (W), MUMBAI-400 064. / VS. DCIT 2(2), AAYAKAR BHAVAN, MUMBAI-400 020. ./ ./PAN/GIR NO. AAACP 4680L ( /APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI ASHOK PATIL / RESPONDENT BY : SHRI N. PADMANABAN / DATE OF HEARING : 26/08/2016 !'# / DATE OF PRONOUNCEMENT : 16/09/2016 $% / O R D E R PER SANDEEP GOSAIN, JUDICIAL MEMBER: THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN MOVE D BY ASSESSEE U/S 254(2) OF THE INCOME TAX ACT FOR RESTORING THE EX P ARTE APPEAL BEARING ITA NO.7526/MUM/2012 AND PROVIDING OPPORTUNITY OF HEARI NG TO THE ASSESSEE. 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE PR EFERRED APPEAL AGAINST THE ORDER DATED 03.10.2012 PASSED BY CIT(A)-5, MUMBAI. THE SA ID APPEAL WAS LISTED FOR 2 MA NO. 67/MUM/2016(A.Y. 2008-09) M/S. PMT MACHINES LTD VS. DCI T HEARING ON 27.01.2016 BUT NONE APPEARED ON BEHALF O F ASSESSEE THEREFORE THE TRIBUNAL AFTER CALLING THE APPEAL SEVERAL TIMES AND CONSIDERING THAT NONE APPEARED ON BEHALF OF ASSESSEE HAD DECIDED TO DISPOSE OFF TH E APPEAL ON MERITS AND THEREFORE VIDE ORDER DATED 03.02.2016 APPEAL OF THE ASSESSEE WAS DECIDED EX PARTE AGAINST ASSESSEE. 3. AGGRIEVED BY THE SAID EX-PARTE ORDER, THE ASSESS EE HAD FILED PRESENT APPLICATION U/S 254(2) OF THE ACT ON THE GROUNDS TH AT THE ASSESSEE HAD ENGAGED MR. ASKOK J. PATIL, ADVOCATE TO REPRESENT THE ASSESSEE IN THE ABOVE APPEAL. IT WAS SUBMITTED THAT THE SAID ADVOCATE BY ERROR HAD MADE A MISTAKE IN NOTING THE NEXT DATE OF HEARING AS 25.01.2016 INSTEAD OF 27.01.2016 , WHEN THE BENCHES OF THE TRIBUNAL WERE NOT FUNCTIONING. IT WAS FURTHER SUBMI TTED THAT MR. PATIL ALSO AS A MATTER OF ROUTINE PRACTICE CHECKS THE REGULAR CAUSE LIST, BUT HE COULD NOT NOTICE THE MATTER LISTED ON 27-01-2016, AS THERE WAS A MISTAKE IN THE CAUSE LIST, AS THE NAME OF THE ASSESSEE WAS MENTIONED AS PMT WATCHES INSTEAD O F PMT MACHINES LIMITED AND MOREOVER THERE WAS A MISTAKE IN THE APPEAL NO. WHICH WAS MENTIONED AS 7526/MUM/2010 INSTEAD OF 7526/MUM/2012, THEREFORE, BECAUSE OF THESE REASONS THE SAID ADVOCATE COULD NOT APPEAR BEFORE THE TRIBU NAL WHEN THE CASE WAS CALLED OUT. THE LD. AR HAD ALSO DRAWN OUR ATTENTION TO THE DETAIL AFFIDAVIT OF MR. ASHOK PATIL IN SUPPORT OF THE PRESENT APPLICATION. 3 MA NO. 67/MUM/2016(A.Y. 2008-09) M/S. PMT MACHINES LTD VS. DCI T 4. AFTER HEARING THE COUNSEL FOR BOTH THE PARTIES A ND PERUSAL OF THE MATERIAL PLACED ON RECORD. WE HAVE NOTED THAT AT PAGE NO.11, THE PHOTOCOPY OF THE CAUSE LIST OF 25.01.2016 HAS BEEN ANNEXED BY THE ASSESSEE AND IN THE SAID CAUSE LIST THERE WAS NO CASE FIXED ON 25.01.2016. HOWEVER IN THE CAUSE LIST OF 27/01/2016 AT SERIAL NO.1 PMT WATCHES LIMITED BEARING ITA NO.7526/MUM/20 10 HAS BEEN MENTIONED IN THE CAUSE LIST. THE NUMBER OF APPEAL AND THE WOR D PMT IS CORRECTLY MENTIONED IN THE CAUSE LIST THEREFORE THE GROUND SET UP BY TH E ASSESSEE THAT THE ADVOCATE COULD NOT APPEARED BEFORE THE BENCH ON 27.01.2016 BECAUSE OF THE AFORE MENTIONED TYPOGRAPHICAL ERROR IS NOT SUSTAINABLE AND EVEN OTH ERWISE SINCE NO CASE WAS NOT LISTED ON 25.01.2016 AS ALLEGEDLY NOTED BY THE ASSE SSEE. HENCE IN SUCH CIRCUMSTANCES IT WAS THE BOUNDED DUTY OF THE COUNSE L OR THE ASSESSEE TO FIND OUT THEIR CASE OR TO MAKE APPROPRIATE APPLICATION FOR T RACING THE NEXT DATE OF HEARING OF THEIR CASE. BUT IN THIS CASE THE ASSESSEE OR HIS C OUNSEL HAS NOT ACTED WITH DUE DILIGENCE. NEVERTHELESS THE PRINCIPLES OF NATURAL J USTICE DEMANDS THAT THE LIS BETWEEN THE PARTIES SHOULD BE DECIDED ON MERITS AFT ER PROVIDING DUE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. ALTHOUGH IN THE PRESEN T CASE FULL OPPORTUNITY OF HEARING TO BOTH THE PARTIES WAS GIVEN BUT STILL THE ASSESSE E HAS NOT APPEARED AND HAS NOW RAISED A PLEA THAT BECAUSE OF THE REASONS STATED IN THE APPLICATION THE ASSESSEE OR HIS ADVOCATE COULD NOT APPEAR AND THERE WAS NO MALAFIDE INTENTION ON THE PART OF THE ASSESSEE OR HIS ADVOCATE. 4 MA NO. 67/MUM/2016(A.Y. 2008-09) M/S. PMT MACHINES LTD VS. DCI T 5. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE P RESENT CASE, WE ARE OF THE CONSIDERED VIEW THAT THE ENDS OF JUSTICE WOULD BE M ET ONLY WHEN WE PROVIDE ONE MORE OPPORTUNITY OF HEARING TO THE ASSESSEE FOR CON TESTING ITS CASE ON MERITS THEREFORE WE SET ASIDE THE EX-PARTE ORDER DATED 03. 02.2016 AND RESTORE THE APPEAL FOR HEARING ON MERITS. THEREFORE KEEPING IN VIEW OU R ABOVE DISCUSSION, WE ALLOW THE MISCELLANEOUS APPLICATION AND WHILE SETTING ASI DE THE EX-PARTE ORDER, WE RESTORE THE APPEAL TO BE HEARD ON MERITS. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION FI LED BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH SEPTEMBER, 2016 SD/- SD/- (JASON P. BOAZ) (SANDEEP GOSAIN) $ / ACCOUNTANT MEMBER &' $ / JUDICIAL MEMBER ( ) MUMBAI; *$ DATED :16.09.2016 PS. ASHWINI 5 MA NO. 67/MUM/2016(A.Y. 2008-09) M/S. PMT MACHINES LTD VS. DCI T / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. + ( ) / THE CIT(A) 4. + / CIT - CONCERNED 5. ./0 ''12 , 12# , ( ) / DR, ITAT, MUMBAI 6. 045 6 / GUARD FILE / BY ORDER, / !'# (DY./ASSTT. REGISTRAR) #$ %, ( ) / ITAT, MUMBAI