SHAKTI CABLE INDUSTRIES, MUMBAI V. DEPUTY COMMISSIONER OF INCOME 22(3), MUMBAI

MA 787/MUM/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 5782 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 1999-2000
• Appeal Filed On: 13-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T A KHAN
• Assessee Lawyers: MRS RITIKA AGARWAL
• Keywords: Bonafide mistake

Judgement Text

E IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI SAK TIJIT DEY, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER MA NO. 787/MUM/2017 ARISING OUT OF ITA NO . 2892/MUM/2014 ASSESSMENT YEAR 1999 - 2000 SHAKTI CABLE INDUSTRIES C/O SOUTHERN E LECTRIC CORPORATION, E.S. PATANWALA, CROSS ROAD, COTTON GREEN, MUMBAI 400033 PAN AAAFS1211R V. DCIT - 22(3) MUMBAI APPLICANT RESPONDENT APPLICANT BY MRS. RITIKA AGARWAL RESPONDENT BY SHRI T.A KHAN (DR) DATE OF HEARING : 27 - 04 - 2018 DATE OF PRONOUNCEMENT : 27 - 04 - 2018 ORDER PER RAMIT KOCHAR, ACCOUNTANT MEMBER BY THIS MISCELLANEOUS A PPLICATION, THE ASSESSEE IS SEEKING TO RECALL AN EX - PARTE ORDER IN ITA NO. 2892/MUM/2014 FOR ASSESSMENT YEAR 1999 - 00 PASSED BY THE INCOME - TAX APPELLATE TRIBUNAL, MUMBAI ( HEREINAFTER CALLED THE TRIBUNAL ) ON 27.07.2017. IT IS THE SAY OF THE LD. COUNSEL FO R THE ASSESSEE THAT THE TRIBUNAL HAS PASSED AN EX - PARTE ORDER DATED 27.07.2017 , IN ITA NO. 2892/MUM/2014 FOR AY 1999 - 2000 AS NONE ATTENDED ON THE DATE OF HEARING BEFORE THE BENCH WHEN THE APPEAL WAS CALLED FOR HEARING ON 27 - 07 - 2017 . I T WAS SUBMITTED BY T HE LD. COUNSEL FOR THE ASSESSEE THAT THERE WAS A DELAY OF 377 DAY S IN FILING THE APPEAL IN ITA NO. 2892/MUM/2014 FOR AY 1999 - 00 AND THE CONDONATION APPLICATION DULY SUPPORTED BY AFFIDAVIT WAS FILED ALONG WITH THE MEMO OF APPEAL FILED WITH THE TRIBUNAL. THE LEARNED COUNSEL FOR THE ASSESSEE STATED THAT THE TRIBUNAL VIDE ITS EX - PARTE ORDER DATED MA NO. 787 /MUM/2017 ARISING OUT OF APPEAL IN ITA NO. 2892/MUM/2014 AY 1999 - 2000 2 27.07.2017 DID NOT CONDONE THE DELAY IN FILING OF APPEAL BEYOND TIME STIPULATED U/S 253(3) AND DISMISSED THE APPEAL OF THE ASSESSEE VIDE AN EX - PARTE ORDER DATED 27.07 .2017 . IT IS FURTHER THE SAY OF THE LD. COUNSEL FOR THE ASSESSEE SMT. RITIKA AGARWAL , ADVOCATE THAT SHE HAS EXECUTED AN SWORN AFFIDAVIT DATED 12 - 10 - 2017 ALONG WITH THIS MA ( PLACED IN MA FILE FOLDER) THAT IT WAS DUE TO INADVERTENT MISTAKE ON THE PART OF HER OFFICE IN NOT RECORDING DATE OF HEARING BEFORE THE TRIBUNAL ON 27.07.2017 IN APPOINTMENT RECORDS MAINTAINED IN HER OFFICE WHICH LED TO HER NON - APPEARANCE BEFORE THE TRIBUNAL ON 27 - 07 - 2017 WHEN THE APPEAL IN ITA NO. 2892/MUM/2014 WAS CA LLED FOR HEARING BEFORE THE BENCH . SHE THEREFORE PLEADED THAT IT WAS A BONAFIDE MISTAKE AND THE SAME SHOULD BE ACCEPTED AND LENIENT VIEW BE TAKEN BY RECALLING THE EX - PARTE ORDER DATED 27 - 07 - 2017 PASSED BY THE TRIBUNAL . IT WAS SUBMITTED THAT THE ASSESSEE HA S GOOD ARGUABLE CASE AND IF THE EX - PARTE ORDER PASSED BY THE TRIBUNAL IS RECALLED , AT BEST THE APPEAL WILL BE HEARD ON MERITS AND DECIDED IN ACCORDANCE WITH LAW WHICH WILL NOT CAUSE ANY PREJUDICE TO REVENUE. IT WAS SUBMITTED THAT BY PASSING AN EX - PARTE OR DER . THE TRIBUNAL HAS CAUSED AN IRREPARABLE LOSS TO THE ASSESSEE. THE LD. DR ON THE OTHER HAND FAIRLY SUBMITTED THAT HE HAS NO OBJECTION IF THE ORDER OF THE TRIBUNAL IS RECALLED. 2. WE HAVE HEARD BOTH THE PARTIES AND CONSIDER ED THE MATERIAL ON RECORD . W E HAVE OBSERVED THAT THE TRIBUNAL HAS PASSED AN ORDER DATED 27 - 07 - 2017 IN ITA NO. 2892/MUM/2014 FOR AY 1999 - 2000 WHEREIN THE ASSESSEE WAS NOT PRESENT WHEN THE APPEAL WAS CALLED FOR HEARING BEFORE THE BENCH ON 27 - 07 - 2017. T HE TRIBUNAL IN ITS ORDER DATED 27 - 07 - 2017 REFUSED TO CONDONE THE DELAY OF 377 DAYS IN FILING THE APPEAL LATE BY THE ASSESSEE BEYOND THE TIME PRESCRIBED U/S 253(3) . WE HAVE ALSO OBSERVED THAT THE ASSESSEE HAS DULLY FILED THE CONDONATION APPLICATION SUPPORTED BY AFFIDAVIT FOR FILING APPEAL L ATE WHICH IS PLACED IN THE FILE. I N THIS MA FILED BY THE ASSESSEE AN AFFIDAVIT DATED MA NO. 787 /MUM/2017 ARISING OUT OF APPEAL IN ITA NO. 2892/MUM/2014 AY 1999 - 2000 3 12.10.2017 IS FILED BY SMT. RITIKA AGARWAL , ADVOCATE STATING ON OATH THAT IT IS BECAUSE OF HER OFFICE MISTAKE IN NOT RECORDING THE DATE OF HEARING I N APPOINTMENT RECORDS WHICH LED TO HER NON APPEARANCE BEFORE THE TRIBUNAL ON 27 - 07 - 2017 WHEN THE APPEAL WAS CALLED FOR HEARING BEFORE THE BENCH . SHE WAS PRESENT IN THE COURT TODAY AND SHE MADE SIMILAR STATEMENT BEFORE THE BENCH AVERRING/CONFIRMING THE MISTAKE COMMITTED BY HER OFFICE IN NOT RECORDING THE DATE OF HEARING IN APPOINTMENT RECORDS. HER AFFIDAVIT DATED 12.10.2017 IS PLACED IN FILE . U NDER THESE CIRCUMSTANCES AND FACTUAL MATRIX OF THE CASE, WE ACCEPT THE BONAFIDE MISTAKE COMMITTED BY THE OFFICE OF MRS RITIKA AGARWAL, ADVOCATE IN NOT RECORDING THE DATE OF HEARING IN THE APPOINTMENT RECORD WHICH WAS THE MAIN CAUSE LE A D ING TO HER NON APPEARANCE BEFORE THE TRIBUNAL ON 27 - 07 - 2017 WHEN THE APPEAL WAS CALLED FOR HEARING LEADING TO PASSING OF AN EX - PARTE ORDER BY THE TRIBUNAL . WE ACCEPT HER CONTENTIONS TO BE TRUE AND BONAFIDE ON THE TOUCH - STONE OF PREPONDERANCE OF PROBABILITIES . W E WOULD LIKE TO DRAW REFERENCE TO RECENT DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF MS. JAYA AGGARWAL V. ITO DATED 13.03. 2018 REPORTED IN [2018] 92 TAXMAN.COM 108(DELHI), WHEREIN THE HONBLE HIGH COURT OF DELHI IN PARA 8 EXPLAINED AS TO THE APPLICATION OF THEORY OF PREPONDERANCE OF PROBABILITIES AS IS APPLICABLE TO THE PROCEEDINGS UNDER THE 1961 ACT, AS UNDER: - 8. WE F IND IT DIFFICULT TO ACCEPT THE APPROACH AND FINDINGS RECORDED FOR SEVERAL REASONS. THE BRIEF ORDER DOES NOT EXAMINE AND CONSIDER THE ENTIRE EXPLANATION AND MATERIAL ON RECORD AS WITHDRAWAL OF RS.2,00, 000/ - IN CASH WAS UNDISPUTED. NATURALLY, THE HUGE WITHDRAWAL WAS FOR A PURPOSE AND OBJECTIVE. FROM THE BEGINNING THE EXPLANATION GIVEN WAS THAT WITHDRAWAL WAS TO PAY EARNEST MONEY FOR PURCHASE OF IMMOVABLE PROPERTY, WHICH DEAL DID NOT FRUCTIFY. EXPLANATION GIVEN WAS NOT FANCIFUL AND SHAM STORY. IT WAS PER FECTLY PLAUSIBLE AND SHOULD BE ACCEPTED, UNLESS THERE WAS JUSTIFICATION AND GROUND TO HOLD TO THE CONT RARY. DELAY OF SOME MONTHS IN RE DEPOSIT OF PART AMOUNT IS THE SOLE AND ONLY REASON TO DIS BELIEVE THE APPELLANT. PERSONS C AN BEHAVE DIFFERENTLY EVEN WHEN P LACED IN SIMILAR SITUATIONS. DUE REGARD AND LATITUDE TO HUMAN CONDUCT AND BEHAVIOUR HAS TO BE GIVEN AND ACCEPTED WHEN WE CONSIDER VALIDITY AND TRUTHFULNESS OF AN EXPLANATION. ONE SHOULD NOT CONSIDER AND REJECT AN EXPLANATION MA NO. 787 /MUM/2017 ARISING OUT OF APPEAL IN ITA NO. 2892/MUM/2014 AY 1999 - 2000 4 AS CONCOCTED AND CONTRIVED BY A PPLYING PRUDENT MAN'S BEHAVIOUR TEST. PRINCIPLE OF PREPONDERANCE OF PROBABILITY AS A TEST IS TO BE APPLIED AND IS SUFFICIENT TO DISCHARGE ONUS. PROBABILITY MEANS LIKELIHOOD OF ANYTHING TO BE TRUE. PROBABILITY REFERS TO APPEARANCE OF TRUTH OR LIKELIHOOD OF BEING REALISED WHICH ANY STATEMENT OR EVENT BEARS IN LIGHT OF THE PRESENT EVIDENCE (MURRAY'S ENGLISH DICTIONARY). EVIDENCE CAN BE ORAL AND CANNOT BE DISCARDED ON THIS GROUND. ASSESSMENT ORDER AND THE APPELLATE ORDERS FALL FOUL AND HAVE DISREGARDED THE PREP ONDERANCE OF PROBABILITY TEST. THUS KEEPING IN VIEW TOTALITY OF CIRCUMSTANCES AND ACCEPTING THE EXPLANATION S GIVEN BY SMT. RITIKA AGARWAL, ADVOCATE OF THE ASSESSEE SUPPORTED BY AN AFFIDAVIT TO BE TRUTHFUL AND BONAFIDE , WE RECALL THE ORDER DATED 27.07.20 17 PASSED BY THE TRIBUNAL IN ITA NO. 2892/MUM/2014 FOR AY 1999 - 2000 . WE DIRECT THE REGISTRY TO FIX THE APPEAL IN ITA NO. 2882/MUM/2014 FOR AY 2009 - 10 BEFORE THE R EGULAR B ENCH FOR HEARING FOR WHICH R EGISTRY IS DIRECTED TO ISSUE NOTICES TO BOTH THE PARTIES . WE ORDER ACCORDINGLY. 3 . THIS M.A . NO. 787/MUM/2017 ARISING OUT OF APPEAL IN ITA NO. 2892/MUM/2014 FOR AY 1999 - 00 IS ALLOWED AS INDICATED ABOVE . ORDER PR ONOUNCED IN THE OPEN COURT ON 27 .04.2018 27 .04.2018 S D / - S D / - ( SAK TIJIT DEY ) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 27 .04.2018 COPY TO NISHANT VERMA SR. PRIVATE SECRETARY 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) CONCERNED, MUMBAI MA NO. 787 /MUM/2017 ARISING OUT OF APPEAL IN ITA NO. 2892/MUM/2014 AY 1999 - 2000 5 4 . THE CIT - CONCERNED, MUMBAI 5 . THE DR BENCH, 6 . MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI