VIJAYKUMAR M MEHTA, MUMBAI V. ITO WD 19(3)(5), MUMBAI

MA 67/MUM/2021

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 6449 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-12-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 25-02-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRISANJAY SETHI

Judgement Text

1 MA 67/Mum/2021 IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY (JUDICIAL MEMBER) AND SHRI S. RIFAUR RAHMAN (ACCOUNTANT MEMBER) M.A. No.67/Mum/2021 (Arising out of I.T.A. No.3393/Mum/2017 (Assessment year 2009-10) Shri VijaykumarM Mehta 1156, T.P. Street 6 th Kumbharwada Mumbai-400 004 PAN : AGAPM3179N vsITO, Wd.19(3)(5), Mumbai APPLICANTRESPONDENT Applicant byShri Vimal kumar Punmiya, AR Respondent byShriSanjay Sethi, DR Date of hearing01-10-2021 Date ofpronouncement14-12-2021 O R D E R Per Saktijit Dey (JM) By way of this application, assessee seeks recall of the ex parte order dated 04-10-2017 passed by the Tribunal in ITA No.3393/Mum/2017. 2.On a query raised by the Bench regarding inordinate delay in filing the present application, learned counsel for the assessee submitted that the appellate order passed by the Tribunal was actually received by the assessee on 18-2-2021. Further, he submitted, on the date of hearing of appeal the assessee, 2 MA 67/Mum/2021 through letter dated 02-09-2017 had sought an adjournment stating that he needed time to engage a counsel and file paper book. It is submitted, without granting adjournment, appeal was decided ex parte confirming the addition. As a result, assessee is facing prosecution. Thus, he submitted, the order may be recalled for enabling the assessee to make a proper representation on merits. 3.The learned departmental representative submitted, since the appeal has been decided on merits, there is no need to recall the order. 4.We have considered rival submissions and perused materials on record. Undisputedly, the appeal was decided ex parte due to the absence of the assessee. However, as averred by the assessee, on the date of hearing of appeal a letter seeking adjournment was filed before the Bench. Considering the fact that assessee did not get an opportunity to represent its case on merits and due to dismissal of the appeal prosecution has been launched against the assessee, in exercise of power conferred under rule 24 of the Income Tax (Appellate Tribunal) Rules,1963, we are inclined to recall the ex parte order for enabling the assessee to properly argue his case on merits. Accordingly, order dated 04-10-2017 passed in ITA No.3393/Mum/2017 is recalled and appeal is restored back to its original position for fresh hearing before the regular Bench in due course. 5.In the result, miscellaneous application is allowed. 3 MA 67/Mum/2021 Order pronounced on 14/12/2021. Sd/-Sd/- (S.RIFAUR RAHMAN)(SAKTIJIT DEY) ACCOUNTANT MEMBERJUDICIAL MEMBER Mumbai, Dt : 14/12/2021 Pavanan Copy to : 1.Applicant 2.Respondent 3.The CIT concerned 4.The CIT(A) 5.The DR, ITAT, Mumbai 6.Guard File /True copy/By Order Asstt. Registrar, ITAT, Mumbai