DEVANG L. SHAH, V. UITO WD 18(2)(1),

MA 759/MUM/2009

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 4291 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-01-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2004-2005
• Appeal Filed On: 17-11-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Principle of natural justice
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D : MUMBAI BEFORE SHRI D. MANMOHAN, HONBLE VICE PRESIDENT AND SHRI R.K.PANDA, ACCOUNTANT MEMBER M.A. NO. 759/MUM/2009 ARISING OUT OF ITA. NO.6467/MUM/2008 - ASSESSMENT YEAR 2004-2005 DEVANG L. SHAH MUMBAI 400 051 PAN AAMPS-4024-Q VS. I.T.O. 18 (2) (4) MUMBAI. (APPLICANT) (RESPONDENT) FOR APPLICANT : SHRI SATISH R. MODY FOR RESPONDENT : MRS. VANDANA SAGAR (D.R.) ORDER PER SHRI D. MANMOHAN, V.P. BY THIS APPLICATION THE ASSESSEE SEEKS RECALL OF THE EXPARTE ORDER DATED 17 TH SEPTEMBER, 2009 PASSED BY THE ITAT, D BENCH, MUMBAI. THE APPEAL WAS FIXED FOR HEARING ON 15-9-20 09 ON WHICH DATE THE REPRESENTATIVE OF THE ASSESSEE FILED LETTER STA TING THAT THE PROPRIETOR MR. DEVANG LALJI SHAH IS OUT OF INDIA AND THUS, REQ UESTED FOR POSTING THE CASE BY GIVING A FRESH DATE OF HEARING. 2. HOWEVER, THE LEARNED D.R. SUBMITTED THAT THE IS SUE IS COVERED BY THE DECISION OF THE APEX COURT IN THE CA SE OF LIBERTY INDIA LIMITED (UNREPORTED ORDER DATED 02-09-2009) AND ALS O STATED THAT THE ASSESSEE IS A HABITUAL DEFAULTER. 3. UNDER THESE CIRCUMSTANCES, WE PROCEEDED TO DISP OSE OF THE APPEAL EXPARTE, QUA THE ASSESSEE AND BY FOLLOWING T HE DECISION OF THE APEX COURT IN THE CASE OF LIBERTY INDIA LIMITED GRO UND NO.2 OF THE ASSESSEE WAS REJECTED. 2 4. AS REGARDS GROUND NO. 1, THE TRIBUNAL OBSERVED IN PARA 6 OF THE ORDER AS UNDER : 6. THERE IS NOTHING ON RECORD TO SUGGEST THAT THE ASSESSEE FULFILLED THE CONDITIONS REQUIRED UNDER SECTION 80IB (2) OF THE ACT SO AS TO BE ELIGIBLE FO R DEDUCTION. 5. LEARNED COUNSEL SUBMITS THAT THE ASSESSEE IS IN TERESTED IN PURSUING THE APPEAL BUT COULD NOT APPEAR ON THE DAT E FIXED FOR HEARING (FIRST POSTING) UNDER COMPULSIVE CIRCUMSTANCES, BEI NG OUT OF INDIA FOR BUSINESS PURPOSE. IT WAS ALSO CONTENDED THAT THE AS SESSEE WAS REGULARLY PURSUING THE MATTERS BEFORE THE APPELLATE TRIBUNAL AND IN PROOF THEREOF ORDERS PASSED BY THE ITAT IN ASSESSEES OWN CASE FO R THE ASSESSMENT YEARS 2001-2002 AND 2003-2004 (ITA.NOS. 1884/MUM/20 05 AND 197/MUM/2007) WERE PLACED BEFORE US. IT WAS FURTHER CONTENDED THAT IDENTICAL ISSUE WAS SET ASIDE BY THE ITAT IN THE EA RLIER YEARS. THUS, THE EXPARTE ORDER RESULTED IN VIOLATION OF PRINCIPLES O F NATURAL JUSTICE AND THERE WAS SUFFICIENT CAUSE FOR NON-APPEARANCE ON TH E DATE FIXED FOR HEARING. LEARNED COUNSEL HAS NOT SERIOUSLY OBJECTED TO THE DECISION OF THE ITAT IN RESPECT OF THE SECOND ISSUE SINCE IT IS COVERED BY THE DECISION OF THE HONBLE APEX COURT MENTIONED ABOVE. 6. ON THE OTHER HAND, LEARNED D.R. SUBMITTED THAT THE DECISION WAS RENDERED BY THE BENCH ON MERITS AND HENCE, RECA LLING AN ORDER PASSED ON MERITS WOULD AMOUNT TO REVIEW. THUS, SHE SUPPORTED THE ORDER PASSED BY THE ITAT. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE RECORD. AS REGARDS GROUND NO.2 LEARNED COUNSEL ADMI TTED THAT THE ISSUE STANDS COVERED BY THE DECISION OF THE APEX COURT AN D HENCE THERE IS NO 3 NEED TO RECALL THE ORDER, VIS--VIS GROUND NO.2, SI NCE THERE IS NO MISTAKE APPARENT FROM RECORD IN DISPOSING THE SAID GROUND. 8. IN SO FAR AS THE FIRST ISSUE IS CONCERNED, ADMI TTEDLY EARLIER ORDERS WERE NOT PLACED ON RECORD AT THE TIME OF HEA RING. ON A CONSPECTUS OF THE MATTER, WE ARE OF THE VIEW THAT IN THE INTER EST OF SUBSTANTIAL JUSTICE AND IN EXERCISE OF THE POWERS VESTED IN US UNDER RU LE 24 OF THE I.T. RULES, WE HEREBY RECALL THE ORDER DATED 17-9-2009 F OR THE LIMITED PURPOSE OF DISPOSING OF GROUND NO.1. WE DIRECT THE REGISTRY TO POST THE APPEAL FOR FRESH HEARING ON 5-4-2010, VIS--VIS GRO UND NO.1. 9. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT, ON THIS THE 1 8 TH DAY OF JANUARY, 2010 SD/- SD/- (R.K.PANDA) (D.MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATE 18 TH JANUARY, 2010. VBP/- COPY TO 1. SHRI DEVANG LALJI SHAH, M/S. WAMA INTERNATIONAL, 315, KEWAL INDUSTRIAL ESTATE, T.P. ROAD, LOWER PAREL, MUMB AI 013 PAN AAMPS-4024-Q 2. I.T.O. 18 (2) (1), MUMBAI. 4. CIT(A)-XVIII, MUMBAI 5. CIT, MUMBAI CITY-XVIII, MUMBAI 6. D.R. D BENCH, MUMBAI. 7. GUARD FILE. (TRUE COPY) BY ORDER ASST. REGISTRAR, ITAT, MUMBAI BENCHES MUMBAI. 4 SNO DATE INITIALS 1 DRAFT DICTATED ON 15-01-2010 SR.P.S 2. DRAFT PLACED BEFORE AUTHOR 15-01-2010 SR.P.S 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER V.P. 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER A.M 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.P.S 6. KEPT FOR PRONOUNCEMENT ON SR.P.S 7. FILE SENT TO THE BENCH CLERK SR.P.S 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER