M/S.THE MILLS STORE COMPANY (BOMBAY) PRIVATE LIMITED, MUMBAI V. PRI.CIT-2, MUMBAI

MA 76/MUM/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3801 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-10-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 13-02-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MICHAEL JERALD
• Keywords: Reasonable cause; Corroborative evidences; Assessment record; Set aside
• Section: 263

Judgement Text

1 MA 76/MUM/2020 IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY (JUDICIAL MEMBER) AND SHRI M. BALAGANESH (ACCOUNTANT MEMBER) M.A. 76/MUM/2020 (ARISING OUT OF I.T.A. NO.1122/MUM/2018) (ASSESSMENT YEAR 2013-14) M/S THE MILLS STORE COMPANY (BOMBAY) PVT LTD, 23, MORVI HOUSE 28/30, GOA STREET, BALLARD ESTATE MUMBAI-400 038 PAN : AABCT0636M VS PRINCIPAL COMMISSIONER OF INCOME- TAX-2, MUMBAI APPLICANT RESPONDENT APPLICANT BY NONE RESPONDENT BY SHRI MICHAEL JERALD DATE OF HEARING 01-10-2021 DATE OF PRONOUNCEMENT 08-10-2021 O R D E R PER SAKTIJIT DEY, JM CAPTIONED APPLICATION HAS BEEN FILED BY THE ASSESS EE SEEKING RECALL OF ORDER DATED 03-05-2019 PASSED IN ITA NO.1122/MUM/2018 FOR THE ASSESSMENT YEAR 2013-14. 2. WE HAVE HEARD LEARNED DEPARTMENTAL REPRESENTATIV E AND PERUSED MATERIALS ON RECORD. ON PERUSAL OF THE STATEMENTS MADE IN TH E PRESENT APPLICATION, IT IS APPARENT, THE ASSESSEE HAS SOUGHT RECALL OF THE ORD ER OF THE TRIBUNAL ON THE GROUND THAT THE APPEAL WAS DECIDED EX PARTE IN ITS ABSENCE. OF COURSE, IN THE 2 MA 76/MUM/2020 MISCELLANEOUS APPLICATION, THE ASSESSEE HAS STATED THE REASONS FOR NON APPEARANCE BEFORE THE TRIBUNAL ON THE DATE OF HEARI NG OF APPEAL. HOWEVER, BEFORE WE DEAL WITH THE ACCEPTABILITY OF ASSESSEES CLAIM AND CONTENTION, IT IS NECESSARY TO LOOK INTO CERTAIN FACTS EMANATING FROM RECORD WHICH WOULD REVEAL THE RESPONSIBILITY, OR, LACK OF IT OF THE ASSESSEE IN DEALING WITH THE TAX LITIGATIONS. IT IS RELEVANT TO OBSERVE, PRINCIPAL COMMISSIONER O F INCOME-TAX (PCIT), AFTER EXAMINING THE ASSESSMENT RECORD OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2013- 14 WAS OF THE VIEW THAT THE ASSESSMENT ORDER IS ERR ONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE ON VARIOUS ASPECTS. ACCORDINGLY , HE ISSUED A SHOW CAUSE NOTICE UNDER SECTION 263 OF THE INCOME-TAX ACT, 1961 CALLI NG UPON THE ASSESSEE TO EXPLAIN AS TO WHY THE ASSESSMENT ORDER SHOULD NOT B E REVISED/SET ASIDE. AS COULD BE SEEN FROM THE FACTS NARRATED AT PARAGRAPH 3 OF T HE ORDER PASSED UNDER SECTION 263 OF THE ACT, THOUGH, THE PROCEEDINGS UNDER SECTI ON 263 WAS FIXED ON VARIOUS OCCASIONS, HOWEVER, EITHER THE ASSESSEE DID NOT ATT END OR SOUGHT ADJOURNMENT ON ONE PRETEXT OR THE OTHER. THUS, DUE TO NON COMPLIAN CE, LEARNED PCIT ULTIMATELY PASSED AN ORDER UNDER SECTION 263 OF THE ACT BASED ON MATERIALS ON RECORD. ASSESSEE CHALLENGED THE AFORESAID ORDER BEFORE THE TRIBUNAL. THE APPEAL WAS FIXED FOR HEARING BEFORE THE TRIBUNAL ON COUPLE OF OCCASI ONS. IN SPITE OF BEING AWARE OF THE DATE OF HEARING, THE ASSESSEE REMAINED ABSENT O N 02-05-2019 WHEN THE APPEAL WAS TAKEN UP FOR HEARING. THEREFORE, THE BEN CH PROCEEDED TO DISPOSE OF THE APPEAL AFTER HEARING THE LEARNED DEPARTMENTAL R EPRESENTATIVE AND BASED ON MATERIALS ON RECORD. 3. IT WOULD BE RELEVANT TO OBSERVE, BEGINNING FROM 25-09-2020, THE PRESENT APPLICATION HAS BEEN FIXED FOR HEARING ON TEN DIFFE RENT OCCASIONS TILL 01-10-2021. HOWEVER, NOT EVEN ON A SINGLE OCCASION EITHER THE A SSESSEE HAS APPEARED OR 3 MA 76/MUM/2020 SOUGHT ANY ADJOURNMENT IN SPITE OF ISSUANCE OF NOTIC E THROUGH REGISTERED POST. THE AFORESAID FACTS CLEARLY REVEAL THE CARELESS ATT ITUDE OF THE ASSESSEE TOWARDS THE TAX LITIGATIONS BEFORE DIFFERENT FORA. THE CONDUCT OF THE ASSESSEE GLARINGLY INDICATES ITS CASUAL APPROACH AND LACK OF INTEREST IN PURSUING APPEALS/APPLICATIONS FILED BEFORE THE TRIBUNAL. THEREFORE, THE CONTENTI ON THAT ITS ACCOUNTANT SUDDENLY FELL ILL WITH AN ATTACK OF DIARRHEA/LOOSE MOTION, H ENCE COULD NOT APPEAR BEFORE THE BENCH ON 02-05-2019 TO SEEK AN ADJOURNMENT IS UNTRUS TWORTHY, HENCE, DOES NOT INSPIRE CONFIDENCE. MORE SO, WHEN IT IS A SELF SERV ING STATEMENT WITHOUT ANY SUPPORTING EVIDENCE LIKE MEDICAL CERTIFICATE, ETC. IN ANY CASE OF THE MATTER, THE TRIBUNAL HAS DECIDED ASSESSEES APPEAL ON MERITS BA SED ON MATERIALS AVAILABLE ON RECORD. 4. RULE 24 OF THE INCOME TAX (APPELLATE TRIBUNAL) R ULES, 1963 DOES NOT CONFER ANY VESTED RIGHT ON THE APPELLANT FOR SEEKING RESTO RATION OF AN APPEAL DECIDED EX PARTE. RESTORATION OF APPEAL UNDER RULE 24 IS WITH A RIDER THAT THE APPELLANT MUST SATISFY THAT THE NON APPEARANCE ON THE DATE OF HEAR ING OF APPEAL IS DUE TO REASONABLE CAUSE. IN THE FACTS OF THE PRESENT CASE, THE ASSESSEE APPLICANT HAS FAILED TO DO SO. 5. IN VIEW OF THE AFORESAID, WE DO NOT FIND ANY REA SONABLE BASIS FOR ENTERTAINING THE PRESENT APPLICATION. 6. IN THE RESULT, MISCELLANEOUS APPLICATION IS DISM ISSED. ORDER PRONOUNCED ON 08/10/2021. SD/- SD/- (M. BALAGANESH) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DT : 08/10/2021 PAVANAN 4 MA 76/MUM/2020 COPY TO : 1. APPELLANT 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