EASTERN OCEANIC IMPEX PRIVATE LIMITED , MUMBAI V. INCOME TAX OFFICER 4 (1) (4), MUMBAI

MA 77/MUM/2018

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 2874 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2008-2009
• Appeal Filed On: 01-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUN KUMAR SINGH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH G, MUMBAI BEFORE SHRI C.N.PRASAD, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER MA NO.77/MUM /2018 (ARISING OUT OF ITA NO.316/MUM/2016) ASSESSMENT YEAR: 2008-09 M/S. EASTERN OCEANIC IMPEX PVT.LTD. 109, PARASRAM BUILDING DR. BABASAHEBJAYAKAR MARG MUMBAI-400 002 PAN: AAACE0981B VS. INCOME TAX OFFICER-4(1)(4), ROOM NO. 637A, 6 TH FLOOR AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020 (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : MS. NEHA PARANJPE, A.R. REVENUE BY : SHRI CHAUDHARY ARUN KUMAR SINGH, D. R. DATE OF HEARING : 29.03.2019 DATE OF PRONOUNCEMENT : 12.04.2019 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: BY VIRTUE OF THIS MISCELLANEOUS APPLICATION, THE A SSESSEE SEEKS THE RECALLING OF THE ORDER PASSED BY THE TRIB UNAL IN ITA NO. 316/MUM/2016 FOR AY. 2008-09 DATED 29/12/2016 WHICH WAS PASSED EX-PARTE. 2. THE LD. AR SUBMITTED BEFORE THE BENCH THAT ORDER HAS BEEN PASSED EX-PARTE WITHOUT HEARING THE ASSESSEE ON ME RITS AND THEREFORE MAY BE RECALLED. THE LD. AR WHILE EXPLAIN ING THE ABSENCE ON THE DATE OF HEARING SUBMITTED BEFORE THE BENCH THAT THE CASE WAS SCHEDULED FOR HEARING ON 06/11/2017. H OWEVER, NO BENCH WAS SPECIFIED IN THE SAID NOTICE AND THE A SSESSEE WAS UNDER THE IMPRESSION THAT THE CASE WOULD BE ASSIGNE D TO SOME MA NO.77/M/2018 (ARISING OUT OF ITA NO.316/M/2016) M/S. EASTERN OCEANIC IMPEX PVT.LTD. 2 SPECIFIC BENCH. HOWEVER THE ASSESSEE DID NOT RECEI VE ANY COMMUNICATION FROM THE REGISTRY OF THE TRIBUNAL QUA THE DATE OF HEARING. ON FRIDAY 03/11/2017 , THE APPLICANT ACCE SSED THE SITE OF THE TRIBUNAL TO CHECK THE CAUSE LIST IN ORD ER TO ASCERTAIN THE HEARING ON 06/11/2017 BUT FOUND THAT THE CASE DID NOT APPEAR IN THE CAUSE LIST FROM 6.11.2017 TO 10.11. 2017. THEREAFTER, THE ASSESSEE CAME TO KNOW THAT THE CASE HAS BEEN HEARD AND ORDER HAS BEEN PASSED EXPARTE BY THE HON BLE TRIBUNAL DISMISSING THE APPEAL OF THE ASSESSEE AND SAID ORDER WAS DOWNLOADED FROM THE SITE OF THE ITAT ON 03/11/ 2017 WHEREIN STATED THAT THE HEARING OF THE CASE ON 06/1 0/2016. THE LD AR REQUESTED THAT AT THE TIME OF HEARING, THE AS SESSEE WAS NOT REPRESENTED AT ALL AND THUS THE CASE WAS HEARD AND DECIDED EXPARTE. LD. AR SUBMITTED THAT THE ASSESSEE DID NOT RECEIVE ANY COMMUNICATION OF PREPONING THE CASE FROM 06/11/2017 TO 03/10/2016. THEREAFTER, IN ORDER TO VERIFY THE FACT OF THE FIXATION OF THE DATE OF HEARING THE ASSESSEE SOUGHT INSPECTI ON OF FILE AND THE ASSESSEE CAME TO KNOW THAT THERE WERE TWO NOTIC ES ISSUES PRIOR TO THE DATE OF HEARING WHICH WERE RETURNED BA CK WITHOUT BEING SERVED ON THE ASSESSEE, THOUGH ADDRESS ON THE SAID NOTICES WERE CORRECTLY MENTIONED. LD. AR FOR THE AS SESSEE SUBMITTED THAT ON THE FRONT SIDE OF NOTICES IT WAS NOT CLAIMED RETURN TO SENDER WHEREAS A BACK SIDE OF TH E LETTER, IT WAS MENTIONED THAT DOOR LOCKED. ALL TH ESE FACTS AND CIRCUMSTANCES ADEQUATELY EXPLAIN THAT CASE WAS HEARD EX- PARTE FOR THE REASONS BEYOND THE CONTROL OF THE AS SESSEE. THE LD. AR, THEREFORE, PRAYED THAT ONE MORE OPPORTUNITY MA Y BE GRANTED TO THE ASSESSEE SO THAT THE CASE COULD BE REPRESENT ED BEFORE THE HONBLE TRIBUNAL ON MERITS OF THE GROUND. THE LD. D R ON THE MA NO.77/M/2018 (ARISING OUT OF ITA NO.316/M/2016) M/S. EASTERN OCEANIC IMPEX PVT.LTD. 3 OTHER HAND STRONGLY OBJECTED TO THE ARGUMENTS OF TH E LD. AR BY SUBMITTING THAT NON-APPEARANCE DESPITE SENDING OF THE TWO NOTICES WHICH COULD NOT BE SERVED FOR THE VARIOUS R EASONS AND THEREFORE, THE MISCELLANEOUS APPLICATION MAY BE DIS MISSED. 3. AFTER HEARING BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD, WE FIND THAT IN THIS CASE THE NOTICES WERE NOT SERVED TO THE ASSESSEE RESULTING INTO EX-PARTE DECISION BY TH E TRIBUNAL FOR NO FAULT OF THE ASSESSEE. UNDER THESE CIRCUMSTANCE S, WE ARE INCLINED TO RECALL THE ORDER DATED 29/12/2016 IN I TA NO. 316/MUM/2016 AND REGISTRY IS DIRECTED TO FIX THE HE ARING OF THE CASE BEFORE THE REGULAR BENCH. THE MISCELLANEOUS APPLICATION IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 /04 /2019 SD/- SD/- (C.N.PRASAD) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED:12.04.2019 * THIRUMALESH, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY /ASSTT. REGISTRAR, ITAT, MUMBAI.