ILIYAS SHIPING P. LTD, V. ITO WD 5(2)(1),

MA 719/MUM/2009

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 4300 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-01-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 30-10-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T RAVINDRA
• Assessee Lawyers: VIKRAM GAUR
• Keywords: Opportunity of being heard; Reasonable cause; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH SMC, MUMBAI BEFORE SHRI D.K. AGARWAL (JM) AND SHRI T.R. SOOD, A.M. M.A. NO. 719/MUM/2009 (ARISING OUT OF I.T.A.NO. 629/MUM/2009) ASSESSMENT YEAR : 2005-06 M/S. ILLYTAS SHIPPING PVT. LTD., 133, DAIL MAHAL, CUFFE PARADE, COLABA, MUMBAI 400 005 PAN: AABCI 2967 A VS. THE INCOME-TAX OFFICER, WARD 5(2)(1),MUMBAI. (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI T. RAVINDRA RESPONDENT BY : SHRI VIKRAM GAUR O R D E R PER T.R. SOOD, AM: THROUGH THIS MISCELLANEOUS APPLICATION THE ASSESSE E HAS SOUGHT RECALLING OF THE ORDER IN I.T.A.NO. 629/M/2009 DATED 24 TH SEPTEMBER, 2009 WHICH HAS BEEN DISMISSED IN LIMINE FOR WANT OF PROSECUTION ON BEHA LF OF THE ASSESSEE. IN THIS CASE AN ADJOURNMENT APPLICATION HAS BEEN FILED BUT THE S AME WAS NOT PRESSED AT THE TIME OF HEARING. THEREFORE, THE SAME WAS REJECTED. 2. IT HAS BEEN POINTED OUT THAT ASSESSEE WAS NOT A WARE OF THE NOTICE BECAUSE NO NOTICE WAS SENT AND IN FACT THE SAME WAS PUT UP ON THE NOTICE BOARD. WE ARE SATISFIED THAT THE ASSESSEE HAS BEEN DEPRIVE D OF THE EFFECTIVE OPPORTUNITY OF BEING HEARD AND THEREFORE, WE RECALL OUR ORDER D ATED 24 TH SEPTEMBER, 2009. THE APPEAL IS FIXED FOR HEARING ON 10.03.2010 AND THE A SSESSEE SHALL TAKE NOTICE ON THIS ORDER ITSELF AND NO SEPARATE NOTICE WOULD BE GIVEN. 3. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS ALLOWED. ORDER PRONOUNCED ON THIS 15 TH DAY OF JANUARY, 2010. SD. SD. (D.K. AGARWAL) (T. R.SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED THE 15 TH JANUARY, 2010. MA NO.719/M/09 M/S. ILLYAS SHIPPING PVT. LTD. R 2 COPY TO: 1. THE ASSESSEE 2. THE REVENUE 3. THE CIT-MC-V, , MUMBAI 4. THE CIT(A)-V, MUMBAI 5. THE DR SMC BENCH, MUMBAI BY ORDER /TRUE COPY/ ASST. REGISTRAR, ITAT, MUMBAI MA NO.719/M/09 M/S. ILLYAS SHIPPING PVT. LTD. R 3 S .NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 15.01.2010 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 15.01.2010 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/A M 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7. FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER MA NO.719/M/09 M/S. ILLYAS SHIPPING PVT. LTD. R 4 ORDER PRONCOUNCED ON . 2. AT THE TIME OF HEARING NONE APPEARED ON BEHALF O F THE ASSESSEE- APPELLANT AS WELL AS NO PETITION FOR ADJOURNMENT WA S FILED. WE FIND FROM THE RECORDS THAT ASSESSEE-APPELLANT WAS SERVED NOTICE B Y REGISTERED POST ACKNOWLEDGEMENT DUE TWICE AND THE ACKNOWLEDG EMENT CARDS DULY SIGNED BY THE ASSESSEE ON 25.07.2007 AND 16.11.2 007 , RECEIVED BACK. IT IS THEREFORE, PRESUMED THAT THE ASSESSEE IS NOT INT ERESTED IN PURSUING THE APPEAL FILED BY IT. IT HAS BEEN HELD BY THE HONBLE MADHYA PRADESH HIGH COURT IN ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT (2 23 ITR 480)(MP) THAT IF THE PARTY, AT WHOSE INSTANCE THE REFERENCE IS MADE, FAILS TO APPEAR AT THE HEARING OR FAILS IN TAKING STEPS FOR PREPARATION OF PAPER-BOOKS, SO AS TO ENABLE HEARING OF THE REFERENCE, THE COURT IS NOT B OUND TO ANSWER THE REFERENCE. THE DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN CIT VS. MULTIPLAN (INDIA) PVT. LTD., 38 ITD 320 (DEL.) IS A LSO TO THE SAME EFFECT. IN THE FACTS OF THE CASE WE HOLD THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING THE PRESENT APPEAL BEFORE THE TRIBUNAL, ACCORDINGLY THE APPEAL OF THE MA NO.719/M/09 M/S. ILLYAS SHIPPING PVT. LTD. R 5 ASSESSEE IS DISMISSED AS UNADMITTED. THE ASSESSEE, IF SO ADVISED, SHALL BE FREE TO MOVE THE TRIBUNAL PRAYING FOR RECALLING OF THIS ORDER PROVIDED THE ASSESSEE IS ABLE TO ESTABLISH THE REASONABLE CAUSE BEHIND THE NON- APPEARANCE ON THE DATE OF HEARING AND IN THAT CASE THE TRIBUNAL MAY IN ITS DISCRETION RECALL THIS ORDER AND THE APPEAL MAY BE RESTORED FOR RE-HEARING. 3. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 18.12.2 007. 2. FROM THE GROUNDS FILED BY THE ASSESSEE BEFORE TH E LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) WE FIND THAT THE LEVY PERTA INED TO CONCEALMENT OF INCOME OF RS. 1,02,744/- AND THE PENALTY LEVIED WAS RS. 22 ,248/-. THEREFORE IN VIEW OF CBDT CIRCULAR F.NO. 279/MISC.142/2007-IT DATED 15 TH MAY, 2008 THE APPEAL IS NOT MAINTAINABLE, TAX EFFECT BEING LESS THAN RS. 2 LAKH S. VIDE PARA 4 OF THIS CIRCULAR IT IS CLEARLY MENTIONED THAT THE TAX EFFECT IN ASCERTA INING MONETARY LIMITS FOR FILING OF APPEALS, IN THE CASE OF PENALTY ORDERS, WOULD MEAN QUANTUM OF PENALTY DELETED OR REDUCED. 3. THEREFORE, APPEAL OF THE REVENUE IS DISMISSED AS NOT MAINTAINABLE. ORDER PRONOUNCED ON THIS _______ DAY OF MAY, 2009 . (G.C. GUPTA) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED THE ______MAY, 2009. KN COPY TO: 6. THE ASSESSEE 7. THE ITO-26(1)(2), MUMBAI. 8. THE CIT, CITY-XXVI, MUMBAI 9. THE CIT(A)-XXVIII, MUMBAI 10. THE DR, G BENCH, MUMBAI BY ORDER /TRUE COPY/ MA NO.719/M/09 M/S. ILLYAS SHIPPING PVT. LTD. R 6 ASST. REGISTRAR, ITAT, MUMBAI S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 18.05.09 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 18.05.09 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7. FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER MA NO.719/M/09 M/S. ILLYAS SHIPPING PVT. LTD. R 7