SAVATEX P.LTD, MUMBAI V. ITO 2(3)(2), MUMBAI

MA 71/MUM/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 9465 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2010-2011
• Appeal Filed On: 01-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GANESH BARE SENIOR AR
• Keywords: Principle of natural justice; Bonafide belief

Judgement Text

G IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER MA NO. 71/MUM/2019 ARISING OUT OF ITA NO.1030/MUM/2016 ASSESSMENT YEAR 2010 - 11 SAVATEX P. LTD., MEHTA HOUSE, 79 - 91, MUMBAI SAMACHAR MARG, FORT, MUMBAI 400001 V. ITO 2(3)(2), MUMBAI APPLICANT RESPONDENT APPELLANT BY SHRI PRAKASH JOTWANI RESPONDENT BY SHRI GANESH BARE , SENIOR AR CIT DATE OF HEARING : 05 - 04 - 2019 DATE OF PRONOUNCEMENT : 05 - 04 - 2019 ORDER PER RAMIT KOCHAR, ACCOUNTANT MEMBER THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICATION(MA) IN MA NO. 71/MUM/2019 ARISING OUT OF ASSESSEES APPEAL IN ITA NO. 1030/MUM/2016 FOR ASSESSMENT YEAR 2010 - 11 WHICH STOOD DISMISSED BY THE ORDER OF THE INCOME TAX APPELLATE TRIBUNAL, E BENCH, MUMB AI VIDE ORDER DATED 12.07.2018. THE ASSESSEE HAS CLAIMED IN THIS MA THAT ITAT PASSED AN EX - PARTE ORDER DISMISSING APPEAL OF THE ASSESSEE IN THE ABSENCE OF THE ASSESSEE AFTER HEARING LEARNED DR AND THE ASSESSEE DID NOT GET AN OPPORTUNITY TO EXPLAIN ITS CASE BEFORE THE TRIBUNAL WHICH BREACHED PRINCIPLES OF NATURAL JUSTICE CAUSING PREJUDICE TO THE ASSESSEE . I T IS CLAIMED THAT HEARING BEFORE THE ITAT, E BENCH, MUMBAI TOOK PLACE ON 30.0 5.2018, WHEREIN THE ASSESSEE HAD MOVED AN WRITTEN APPLICATION DATED 28.05.2018 BEFORE THE BENCH SEEKING ADJOURNMENT ON THE GROUND S THAT IT HAD APPOINTED MR JAHANGIR MISTRY, SENIOR ADVOCATE TO REPRESENT IT S APPEAL BEFORE ITAT IN ITA NO. 1030/MUM/2016 FOR AY 2010 - 11 AND ON THE DATE FIXED FOR HEARIN G MA NO. 71/MUM/2019 ARISING OUT OF ITA NO.1030/MUM/2016 2 BEFORE THE BENCH ON 30.05.2018, SHRI JAHANGIR MISTRY , SENIOR ADVOCATE WAS NOT AVAILABLE IN MUMBAI . THE SAID COPY OF ADJOURNMENT APPLICATION DATED 28.05.2018 WAS PRODUCED BEFORE THE BENCH BY LEARNED COUNSEL FOR THE ASSESSEE SHRI PRAKASH K. JOTWANI, ADVO CATE WHICH IS NOW PLACED IN MA FILE . IT IS CLAIMED THAT THE SAID LETTER OF ADJOURNMENT WAS FILED BY ASSESSEE WITH ITAT, R EGISTRY ON 28.05.2018 ITSELF , HOWEVER NONE APPEARED ON BEHALF OF THE ASSESSEE BEFORE THE BENCH ON THE DATE OF HEARING ON 30.05.2018 WHEN THE APPEAL WAS CALLED FOR HEARING. IT IS CLAIMED THAT THE ASSESSEE WAS UNDER A BELIEF THAT SINCE IT HAD BON AF IDE AND SUFFICIENT REASONS FOR SEEKING ADJOURNMENT ON THE DATE FIXED FOR HEARING ON 30.05.2018 AS STATED ABOVE , THE BENCH WILL GRANT AN ADJOU RNMENT AND THE ASSESSEE WILL RECEIVE FRESH NOTICE OF HEARING INTIMATING IT AS TO FRESH DATE OF HEARING BEFORE THE BENCH . W HEN THE MATTER CAME BEFORE ITAT, E B ENCH , MUMBAI ON 30.05.2018 , THE SAID LETTER WAS PLACE D BEFORE THE BENCH BY BENCH C LERK AND THE TRIBUNAL WAS P LEASED TO ADJOURN THE HEARING TO 05.07.2018 AFTER RECORDING ITS ORDER IN THE ORDER SHEET ENTRY , AS UNDER: - 5 / 30.05.2018 HEARING IS ADJOURNED TO 05.07.2018 AT THE REQUEST OF AS VIDE LETTER DT. 28.5. 18. NONE APPEA RED ON BEHALF OF ASSESSEE, DATE ANNOUNCED IN OPEN COURT. SD/ - SD/ - NKP/ AM J S/JM 1.2. THUS AS COULD BE SEEN FROM THE AFORESAID ORDER SHEET ENTRY RECORDED IN THE APPEAL FILE IN ITA NO. 1030/MUM / 2016 FOR AY 2010 - 11 , THE BENCH ADJOURN ED THE HEARING ON 30.05.2018 TO THE NEXT DATE OF HEARING VIZ. 05.07.2018 AND DATE WAS ANNOUNCED IN THE OPEN COURT. H OWEVER, NO FRESH NOTICE WAS SENT BY THE REGISTRY OF ITAT TO THE ASSESSEE INTIMATING NEXT DATE OF HEARING I.E. 05.07.2018 . THE ORIGINAL LETTER OF ADJOURNMENT DATED 28.05.2018 MOVED BY ASSESSEE IS ALSO AVAILABLE IN THE APPEAL FILE. 1.3 . WHEN THE MATTER CAME UP BEFORE THE BENCH ON THE NEXT DATE OF HEARING ON 05.07.2018, THE E B ENCH DISMISS THE APPEAL AFTER HEARING LEARNED DR IN THE ABSENCE OF LD. C OUNSEL FOR THE ASSESSEE . THE APPEAL WAS MA NO. 71/MUM/2019 ARISING OUT OF ITA NO.1030/MUM/2016 3 DISMISSED BY ITAT , E BENCH, MUMBAI VIDE ORDER DATED 12.07.2018 IN ITA NO. 1030/MUM/2016 FOR AY 2010 - 11 . WE HAVE OBSERVED FROM THE APPEAL FILE THAT PRIOR TO THE HEARING ON 30.05.2018 , THE MATTER CAME UP FOR THE HEARING BEFORE THE BENCH ON TWO OCCASION S I.E. 26.12.2017 AND 03.04.2018 WHEN NONE APPEARED ON BEHALF OF THE ASSESSEE BEFORE THE BENCH. HOWEVER, ON 30.05.2018 THE ASSESSEE ENTER ED APPEARANCE BEFORE THE BENCH THROUGH WRITTEN LETTER DATED 28.05.2018 SEE KING ADJOURNMENT . THE SAID LETTER IN ORIGINAL IS AVAILABLE IN APPEAL FILE. THE LD. COUNSEL FOR THE ASSESSEE HAS MADE STATEMENT BEFORE US THAT THAT THE ASSESSEE WAS GENUINELY AND BONAFIDELY NOT AWARE OF THE NEXT DATE OF HEARING ANNOUNCED BY THE BENCH ON 30.05.2018 WHICH WAS FIXED FOR 05.07.2018 AS ASSESSEE WAS UNDER BONAFIDE BELIEF THAT ITAT REGISTRY WILL SEND IT A FRESH NOTICE INTIMATING NEXT DATE OF HEARING. IT IS AVERRED BY LD. COUNSEL FOR THE ASSESSEE SHRI PRAKASH K. JOTWANI, ADVOCATE THAT HE IS N OW APPOINTED BY ASSESSEE AS COUNSEL TO APPEAR BEFORE THE TRIBUNAL TO REPRESENT ASSESSEES APPEAL IN CASE THIS MA IS ALLOWED BY TRIBUNAL. THE LEARNED COUNSEL FOR THE ASSESSEE MADE STATEMENT BEFORE THE BENCH THAT SUCH LAPSE OF NON APPEARANCE BEFORE THE BENC H WILL NOT OCCUR AGAIN AND DUE CARE WILL BE EXERCISED TO APPEAR ON THE DATES FIXED FOR HEARING. HE FURTHER STATED THAT ALL EFFORTS WILL BE MADE FOR AN EXPEDITIOUS DISPOSAL OF THE APPEAL. 1.4 THE LD. DR DID NOT RAISE ANY SERIOUS OBJECTION IF AN EX - PARTE O RDER DATED 12.07.2018 IN ITA NO. 1030/MUM/2016 PASSED BY ITAT IS RECALL ED . 1.5 AFTER CONSIDERING SUBMISSION S OF BOTH THE PARTIES , WE HAVE OBSERVED THAT TRIBUNAL HAS PASSED AN EX - PARTE ORDER DATED 12.07.2018 IN ITA NO. 1030/MUM /2016 FOR AY 2010 - 11 BY DI SMISSING APPEAL OF THE ASSESSEE . THE ASSESSEE DID MOVE D AN APPLICATION BEFORE THE BENCH FOR ADJOURNMENT ON 30.05.2018 VIDE WRITTEN LETTER DATED 28.05.2018 . THE TRIBUNAL WAS PLEASED TO GRANT AN A DJOURNMENT ON 30.05.2018 BASED ON THE SAID WRITTEN REQUEST MOVED BY THE ASSESSEE VIDE LETTER DATED 28.05.2018 AND NEXT DATE OF HEARING WAS FIXED FOR 05.07.2018 .THE DATE WAS ANNOUNCED IN OPEN COURT A ND NO FRESH NOTICE WAS SENT BY R EGISTRY OF ITAT TO BOTH THE PARTIES. ON 05.07.2018 , NONE APPEARED ON BEHALF OF THE ASSESSEE AND TRIBUNAL DISMISSED ASSESSEES MA NO. 71/MUM/2019 ARISING OUT OF ITA NO.1030/MUM/2016 4 APPEAL EX - PARTE IN THE ABSENCE OF THE ASSESSEE AFTER HEARING LEARNED DR. THE CLAIM OF THE ASSESSEE THAT IT WAS NOT AWARE OF DATE OF HEARING FIXED BY TRIBUNAL FOR 05.07.2018 AS THE ASSESSEE WAS UNDER AN BONAFIDE BELIEF THAT IT WILL GET FRESH NOTICE OF HEARING FROM TRIBUNAL COULD NOT BE SAID TO BE WITHOUT ANY BASIS AND WE HAVE NO REASONS TO DOUBT THE TRUTHFULNESS OF THE SAID CLAIM. THE LEARNED COUNSEL FOR THE ASSESSEE HAS NOW STATE D THAT THERE WILL BE NO LAPSE IN FUTURE AND EVERY CARE WILL BE TAKEN TO ENSURE THAT THE APPEAL WILL BE DISPOSED OF EXPEDITIOUSLY. THUS , KEEPING IN VIEW THE ENTIRE FACTUAL MATRIX OF THE CASE AND OBSERVING THAT THE APPEAL WAS DISMISSED EX - PARTE IN THE ABSE NCE OF THE ASSESSEE CAUSING PREJUDICE TO THE ASSESSEE AS THE ASSESSEE DID NOT GOT CHANCE TO EXPLAIN ITS CASE BEFORE THE TRIBUNAL, WE ARE INCLINED TO RECALL OUR ORDER DA TED 12.07.2018 IN ITA NO. 1030/M UM/2016 FOR AY 2010 - 11 AND GRANT FRESH DATE OF HEARING O F THE APPEAL IN ITA N O . 1030/MUM/2016 FOR 11.0 6 .2019 . THE AFORESAID DATE OF HEARING IS ANNOUN CED IN OPEN COURT IN PRESENCE OF BOTH THE PARTIES AND NO FRESH NOTICE WILL BE ISSUED TO BOTH THE PARTIES. BOTH THE PARTIES HAVE NOTED THE NEXT DATE OF HEARING OF THE APPEAL IN ITA NO. 1030/MUM/2016 FOR AY 2010 - 11 WHICH IS NOW FIXED FOR HEARING FOR 11.06.2019 . WE ORDER ACCORDINGLY. 2 . THUS, THIS M.A. NO. 71 /MUM/2019 ARISING OUT OF APPEAL IN ITA NO. 1030/MUM/2 016 FOR AY 2010 - 11 FILED BY THE ASSESSEE IS ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 05.04.2019 05.04.2019 S D / - S D / - ( SAKTIJIT DEY ) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 05.04.2019 COPY TO NISHANT VERMA SR. PRIVATE SECRETARY MA NO. 71/MUM/2019 ARISING OUT OF ITA NO.1030/MUM/2016 5 1 . THE APPELLANT 2 . THE RESPONDENT 3 . TH E CIT(A) CONCERNED, MUMBAI 4 . THE CIT - CONCERNED, MUMBAI 5 . THE DR BENCH, 6 . MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI