SURELA INVESTMENT AND TRADING PRIVATE LIMITED , MUMBAI V. INCOME TAX OFFICER WARD 2(3)-2, MUMBAI

MA 728/MUM/2017

• Counselvise Citation: [2022] 103 COUNSELVISE.COM (IT) 9319 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 1 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-10-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 15-09-2022
• Assessment Year: 2006-2007
• Appeal Filed On: 11-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset converted into stock in trade

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “G” BENCH, MUMBAI BEFORE SHRI PRAMOD KUMAR, VICE PRESIDENT AND SHRI SANDEEP SINGH KARHAIL, JUDICIAL MEMBER M.A. no.728/Mum./2017 IN ITA No.242/Mum./2010 (Assessment Year : 2006–07) Surela Investment & Trading Pvt. Ltd. Old ICI Godown, Fosbery Road Off. Reay Road Station (East) Mumbai 400 033 PAN – AACCS2358C ................ Applicant v/s Income Tax Officer Ward–2(3)-2, Mumbai ................Respondent Assessee by : Shri Madhur Agrawal and Ms. Moksha Mehta Revenue by : Smt. Mahita Nair Date of Hearing – 16/09/2022 Date of Order – 31/10/2022 O R D E R PER BENCH The present Miscellaneous Application has been filed by the assessee seeking recall of the ex–parte order dated 29/09/2010, passed under section 254(1) of the Income Tax Act, 1961 ("the Act") by the Co–ordinate Bench of the Tribunal in assessee’s appeal being ITA no.242/Mum./2010, for the assessment year 2006–07. Surela Investment & Trading Pvt. Ltd. M.A. no.728/Mum./2017 Page | 2 2. During the course of hearing, the learned AR submitted that the assessee's appeal was decided ex-parte as none appeared on behalf of the assessee on the date fixed for hearing. The learned AR further submitted that neither the notice of hearing nor the order passed by the Co–ordinate Bench of Tribunal was received by the assessee and it was only during the course of preparation of the appeal for assessment year 2008–09 on similar issue that assessee inquired about the status of the appeal for the year under consideration and was informed that the appeal has been disposed off vide order dated 29/09/2010 for non-prosecution. Thereafter, the assessee vide letter dated 17/07/2017 requested for a copy of the order passed by the Tribunal and the same was received by the assessee on 10/08/2017. Subsequent thereto, present Miscellaneous Application was filed on 12/09/2017. The learned AR also referred to the affidavit filed by the authorised signatory of assessee in support of the aforesaid submission. 3. On the other hand, learned Departmental Representative vehemently opposed the prayer for recall of the order passed by the Co–ordinate Bench of the Tribunal. 4. We have considered the rival submissions and perused the material available on record. The Co–ordinate Bench of the Tribunal vide ex-parte order dated 29/09/2010 dismissed the appeal filed by the assessee by observing as under: “2. Though, the notice was sent to the assessee well in advance through registered post, none appeared on behalf of the assessee. It is also noticed that Surela Investment & Trading Pvt. Ltd. M.A. no.728/Mum./2017 Page | 3 despite mandate of section 140(c) read with rule 47 read with rule 45(2), appeal was filed by a Director without mentioning as to whether there was no Managing Director at all for the company as otherwise reasons to be mentioned for not obtaining signature of the managing director, if any. Under these circumstances, it has to be assumed that the assessee is not interested in prosecuting the appeal. In the case of M/s. Chemipal Vs. Central Excise in the Direct Central Excise No. 62 of 2009 dated 17.9.2009, Hon'ble Jurisdictional High Court held that if the assessee does not show interest in pursuing the appeal without any justifiable reasons, the Tribunal has inherent power to dismiss the appeal for non- prosecution. Under these circumstances, appeal filed by the assessee is dismissed for non–prosecution, as pronounced in the open court.” 5. In this regard, it is the plea of the assessee that the cover letter dated 06/01/2010 to the memorandum of appeal filed by the assessee specifically mentions that assessee company does not have a Managing Director and therefore Form No. 36 of the present appeal has been signed by the Director. Thus, from the record it is evident that as no representation was made on behalf of the assessee, therefore, aforesaid fact could not be brought to the notice of the Co–ordinate Bench of Tribunal and the appeal was dismissed only on technical aspect. Further, from the perusal of facts available on record as well as material called from the registry during the pendency of present Miscellaneous Application, we find no evidence to controvert the submissions of the assessee that neither the notice of hearing nor the order passed by the Co-ordinate Bench was received by the assessee. Since, the order sought to be recalled is an ex–parte order, therefore, in exercise of power conferred under Rule 24 of ITAT Rules, 1963, we are of the considered view that there was sufficient cause for non–appearance on behalf of the assessee when the appeal was called for hearing. Accordingly, we deem it fit and appropriate to recall the aforesaid ex–parte order dated 29/09/2010, passed in assessee’s appeal being Surela Investment & Trading Pvt. Ltd. M.A. no.728/Mum./2017 Page | 4 ITA no.242/Mum./2010. The registry is directed to list the assessee’s appeal in due course for hearing and issue necessary notice to the parties in this regard. 6. In the result, Miscellaneous Application by the assessee is allowed. Order pronounced in the open Court on 31/10/2022 Sd/- PRAMOD KUMAR VICE PRESIDENT Sd/- SANDEEP SINGH KARHAIL JUDICIAL MEMBER MUMBAI, DATED: 31/10/2022 Copy of the order forwarded to: (1) The Assessee; (2) The Revenue; (3) The CIT(A); (4) The CIT, Mumbai City concerned; (5) The DR, ITAT, Mumbai; (6) Guard file. True Copy By Order Pradeep J. Chowdhury Sr. Private Secretary Assistant Registrar ITAT, Mumbai