DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 3, MUMBAI V. VIVIL INVESTMENT PRIVATE LIMITED , MUMBAI

MA 818/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6619 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-05-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2010-2011
• Appeal Filed On: 31-10-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JAY SHAH
• Assessee Lawyers: M V RAJGURU
• Keywords: Principle of natural justice

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI R. C. SHARMA , AM AND SHRI SANDEEP GOSAIN, JM M .A. NO . 818/MUM/2017 (IN ITA NO.1547/MUM/2015 ) ( / ASSESSMENT YEAR: 2010 - 11 ) M/S VIVIL INVESTMENT PVT. LTD. 13A/13 TH FLOOR, EARNEST HOUSE, NARIMAN POINT, MUMBAI - 400 021 / VS. DCIT CEN CIR - 3, MUMBAI PIN - ./ ./ PAN/GIR NO. A A BCV0724A ( / APP LICANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI JAY SHAH, AR / RESPONDENT BY : SHRI M. V. RAJGURU, DR / DATE OF HEARING : 20.04 .201 8 / DATE OF PRONOUNCEMENT : 28/05/2018 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE PRESENT MISCELLANEOUS APPLICATION H AS BE EN M OVED BY ASSESSEE /RESPONDENT FOR RESTORING THE EX PARTE APPEAL BEARING ITA NO. 1547/MUM/2015 AND PROVIDING OPPORTUNITY OF HEARING TO THE ASSESSEE. 2. THE LD AR SUBMITTED BEFORE US THAT AT THE TIME OF FILING APPEAL BEFORE HON'BLE ITAT, DUE TO OVERSIGHT, DA TE OF C I T(A) ORDER WAS MENTIONED AS DATE OF 2 M A NO. 818 /MUM/2017(A.Y. 2010 - 11 ) M/S VIVIL INVESTMENT PVT. LTD. RECEIPT OF THE APPEAL ORDER AND LATER ON , R EALIZING THIS MISTAKE, ASSESSEE WANTS TO CORRECT IT TO ACTUAL DATE OF RECEIPT WHICH WAS 12.01 .2015 . B UT SINCE THERE WAS NO DOCUMENTARY EVIDENCE AVAILABLE WITH THE ASSE SSEE, AND HENCE ASSESSEE WAS ADVISED TO FILE AN APPLICATION UNDER RIGHT TO INFORMATION ACT, 2005 (RT I ) TO KNOW DATE OF D ISPATCH OF THE ORDER. LD. AR FURTHER SUBMITTED THAT AS PER RTI REPLY, IT WAS INFORMED THAT THE SAID ORDER OF CIT(A) WAS SENT BY SPEED PO ST AND THE SAME WAS RETURNED BY THE POSTAL AUTHORITIES UNSERVED WITH THE REMARKS 'LEFT' ON 18.11.2014. THEREAFTER, THE SAID ORDER WAS COLLECTED ON BEHA LF OF ASSESSEE COMPANY ON 09.01.2015 BY ITS AUTHORIZED REPRESENTATIVE . LD. AR FURTHER SUBMITTED THAT TH E AUTHORIZED REPRESENTATIVE OF THE ASSESSEE FORWARDED THE ORDER ON 12.01.2015 (MONDAY). THEREFORE, CONSIDERING DATE OF RECEIPT AS 12.01 - 2015, L AST DATE OF FILING APPEAL W ORKS OUT TO 13TH OF MARCH 2015 AND T HUS, THERE WAS NO DELAY IN FILING THE APPEAL. 3. AFTER HEARING THE COUNSEL S FOR BOTH THE PARTIES AND PERUSAL OF THE MATERIAL PLACED ON RECORD . WE FIND THAT ASSESSEE HAS MOVED THE PRESENT MISC. APPLICATION WITHOUT MENTIONING ANY PROVISIONS UNDER WHICH THE SAID APPLICATION HAS BEEN MOVED. EVEN ASSUMING TH AT THIS APPLICATION HAS BEEN FILED BY THE ASSESSEE FOR RECALLING THE EX - PARTE ORDER DATED 15.04.17, B UT EVEN THEN THE ASSESSEE HAS NOT BEEN ABLE TO DEMONSTRATE OR SATISFIED US, THAT THERE WAS ANY SUFFICIENT CAUSE FOR HIS 3 M A NO. 818 /MUM/2017(A.Y. 2010 - 11 ) M/S VIVIL INVESTMENT PVT. LTD. NON - APPEARANCE , WHEN THE APPEAL WAS CALLED FOR HEARING. WE ALSO FIND FROM THE CONTENTS OF THE APPLICATION THAT THE ONLY REASON MENTIONED BY THE ASSESSEE IS WITH REGARD TO DELAY IN FILING THE MAIN APPEAL BY 84 DAYS. SINCE WE HAVE ALREADY DISMISSED THE APPEAL OF THE ASSESSEE ON THE GROUND OF LIMITATION, THEREFORE THERE IS NO CAUSE LEFT TO THE ASSESSEE TO MOVE THE PRESENT APPLICATION BEFORE US UNDER ANY OF THE PROVISIONS OF THE I.T. ACT OR THE RULES FRAMED THEREIN. 4. HOWEVER, WE NOTICE THAT ALTHOUGH THERE IS NO MISTAKE APPARENT FROM TH E RECORD IN THE O RDER PASSED BY HONBLE TRIBUNAL. HOWEVER, IT WAS THE BOUNDED DUTY OF THE ASSESSEE OR HIS COUNSEL TO APPEAR BEFORE THE TRIBUNAL IN COMPLIAN CE OF THE NOTICE RECEIVED BY THEM . THE ASSESSEE HAS NOT ACTED WITH DUE DILIGENCE . NEVERTHELESS T HE P RINCIPLES OF NATURAL JUSTICE DEMANDS THAT THE LIS BETWEEN THE PARTIES SHOULD BE DECIDED ON MERITS AFTER PROVIDING DUE OPPORTUNITY OF HEARING TO BOTH THE PARTIES . ALTHOUGH IN THE PRESENT CASE , ADEQUATE OPPORTUNITY OF HEARING T O BOTH THE PARTIES WAS GIVEN BUT STILL THE ASSESSEE OR HIS COUNSELS HAD NOT APPEARED . 5 . BE THAT AS IT MAY, C ONSIDERING THE FACT S AND CIRCU MSTANCES OF THE PRESENT CASE , WE ARE OF THE CONSIDERED VIEW THAT THE ENDS OF JUSTICE WOULD BE MET ONLY WHEN WE PROVIDE ONE MORE OPPORTUNITY OF HEARING TO THE ASSESSEE FOR CONTESTING 4 M A NO. 818 /MUM/2017(A.Y. 2010 - 11 ) M/S VIVIL INVESTMENT PVT. LTD. THE APPEAL ON MERITS . IN OUR VIEW, IF THIS M.A. IS ALLOWED, NO PREJUDICE WOULD BE CAUSED TO THE INTEREST OF REVENUE AS LEGITIMATE TAXES DUE ON THE ASSESSEES CORRECT INCOME WILL BE COLLECTED . WHEREAS, IF THE CONTRARY VIEW IS TAKEN THEN IN THAT EVENTUALITY THE ASSESSEE MAY BE PUT TO GREAT HARDSHIP AND DIFFICULTY. T HEREFORE , KEEPING IN VIEW THE ABOVE DISCUSSION, WE SET ASIDE THE EX - PARTE ORDER IN ITA NO. 1547/MUM/2015 DATED 05.04.17 SUBJECT TO PAYMENT OF COST OF RS. 2000 / - TO BE DEPOSITED WITH PRIME MINISTER RELIEF FUND (P M RF) AGAINST PROPER RECEIPT AND RESTORE THE A PPEAL FOR HEARING ON MERITS BY THE REGULAR BENCH. REGISTRY IS DIRECTED TO FIX THE PRESENT APPEAL BEFORE REGULAR BENCH AND ISSUE NOTICE TO BOTH THE PARTIES FO R HEARING ACCORDINGLY. 6 . IN THE NET RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE STANDS ALLOWED IN TERMS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH MAY 2018 . SD/ - SD/ - ( R. C. SHARMA ) (SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 28 .05.18 SR.PS DHANANJAY 5 M A NO. 818 /MUM/2017(A.Y. 2010 - 11 ) M/S VIVIL INVESTMENT PVT. LTD. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBA I