SANJAYKUMAR MEHTA, MUMBAI V. ACIT 19(3), MUMBAI

MA 86/MUM/2019

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0351 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 07-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUN KUMAR SINGH
• Assessee Lawyers: N M PORWAL
• Keywords: Principle of natural justice; Bonafide belief

Judgement Text

G IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI C.N.PRASAD , JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER MA NO. 86/MUM/2019 ARISING OUT OF ITA NO 2898 /MUM/201 7 ASSESSMENT YEAR 2009 - 10 SANJAY KUMAR MEHTA ROOM NO. 8, 1 ST FLOOR MARDIA BHAVAN 6, KHETWADI LANE, MUMBAI - 400004 V. THE ASSISTANT COMMISSIONER OF INCOME - TAX - 19(3) MUMBAI APPLICANT RESPONDENT APPELLANT BY SHRI N M PORWAL ,ADVOCATE RESPONDENT BY SHRI CHAUDHARY ARUN KUMAR SINGH DATE OF HEARING : 2 9 - 0 3 - 2019 DATE OF PRONOUNCEMENT : 29 - 03 - 2019 ORDER PER RAMIT KOCHAR, ACCOUNTANT MEMBER THE ASSESSEE HAS FILED THIS MISCEL L ANEOUS APPLICATION (MA) IN MA NO. 86 /MUM/201 9 ARISI NG OUT OF ASSESSEE S APPEAL IN ITA NO. 2898 /MUM/201 7 SEEKING RECTIFICATION OF AN MISTAKE APPARENT FROM RECO RDS IN AN ORDER DATED 22.10.2018 PASSED BY INCOME - TAX APPELLATE TRIBUNAL , G BENCH, M UMBAI (HEREINAFTER CALLED THE TRIBUNAL) FOR ASSESSMENT YEAR 2009 - 10 . 2. WHEN THIS MA WAS CALLED FOR HEARING , THE LEARNED COUNSEL FOR THE ASSESSEE MR. N.M.PORWAL , ADVOCATE SUBMITTED THAT THIS APPEAL WAS DECIDED EX - PARTE ON 17.10.2018. IT IS CLAIMED THAT PRINCIPLES OF NATURAL JUSTICE IS INFRINGED BY TRIBUNAL WHILE PASSING AN ORDER DATED 22.10.2018. IT WAS SUBMITTED THAT THIS APPEAL WAS EARLIER FIXED BEFORE J BENCH , ITAT , MUMBAI WHEN THE FIRST HEARING TOOK PLACE ON 28.08.2018. THE A SSESSEE MOVED AN ADJOURNMENT APPLICATION AS THE COUNSEL OF THE ASSESSEE MR. N M PORWAL , ADVOCATE WAS OUT OF STATION. THE J BENCH WAS PLEASED TO ADJOURN THE HEARING TO MA NO. 86/MUM/2019 ARISING OUT OF ITA NO. 2898/MUM/2017 2 17.10.2018. IT WAS SUBMITTED THAT J BENCH DID NOT FUNCTION ON 17.10.2018. THE ASSESS EE HAS PLACED ON RECORD CONSTITUTION OF MUMBAI BENCHES FOR THE RELEVANT PERIOD WHICH SHOWS THAT J BENCH WILL NOT FUNCTION ON 17.10. 2018. THE SAID CONSTITUTION OF B ENCHES IS PLACED IN MA FILE. IT WAS CLAIMED THAT MR N M PORWAL, ADVOCATE ON COMING TO KNOW THAT J BENCH , ITAT, MUMBAI IS NOT FUNCTIONING ON 17.10.2018 WENT TO RAJASTHAN FOR SOME PERSONAL WORK. IT IS CLAIMED THAT HE LEFT MUMBAI ON 13.10.2018. AN AFFIDAVIT DATED 05.02.2019 TO THAT EFFECT EXECUTED BY MR. N M PORWAL, ADVOCATE IS FILED AND IS PLA CED IN THE MA FILE. IT IS CLAIMED THAT MR. N M PORWAL IS AN ARGUING COUNSEL IN THIS APPEAL WHO IS ENGAGED BY THE ASSESSEE TO APPEAR BEFORE ITAT. IT IS CLAIMED THAT IN THE MEANTIME , ITAT HAS SHIFTED THIS APPEAL TO G BENCH FROM J BENCH WHILE NO INTIMATI ON WAS SENT TO THE ASSESSEE TO THAT EFFECT. THUS, THE ASSESSEE AND ITS COUNSEL HAD CLAIMED TO HAVE BONAFIDE BELIEF THAT THIS APPEAL IS PLACED WITH J BENCH ,ITAT, MUMBAI AS IT WAS HEARD ON THE LAST DATE OF HEARING ON 28.08.2018 , BUT IN THE MEANTIME ITAT ,MU MBAI SHIFTED THIS APPEAL TO G BENCH WITHOUT SENDING ANY NOTICE TO THE ASSESSEE. IT IS ONCE AGAIN CLAIMED THAT PRINCIPLES OF NATURAL JUSTICE ARE INFRINGED AS BENCH WAS SHIFTED FROM J BENCH TO GBENCH WITHOUT INTIMATING ASSESSEE. IT IS CLAIMED THAT THE C HARTERED A CCOUNTANT OF THE ASSESSEE FROM THE CAUSE LIST PUBLISHED BY ITAT CAME TO KNOW THAT THE MATTER IS POSTED FOR HEARING ON 17.10.2018 BEFORE G BENCH. BUT SINCE THE ARGUING COUNSEL HAS ALREADY LEFT FOR RAJASTHAN ON 13.10.2018 , AN ADJOURNMENT APPLIC ATION WAS MOVED BY ASSESSEE THROUGH ONE MR MAYANK J AIN FOR SEEKING ADJOURNMENT ON 1 7.10.2018. THE SAID ADJOURNMENT APPLICATION WAS REJECTED BY THE BENCH ON THE GROUNDS OF HAVING NO JUSTIFICATION AND VALID REASONS FOR SEEKING ADJOURNMENT. IT IS CLAIMED THAT THE BENCH WENT ON HEARD THE MATTER IN THE ABSENCE OF ARGUING COUNSEL ON 17.10.2018 AND THE APPEAL OF THE ASSESSEE WAS DISMISSED. THUS , IT IS PRAYED THAT AN ORDER DATED 22.10.2018 PASSED BY ITAT IN ITA NO. 2898/MUM/2017 BE RECALLED AND FRESH OPPORTUNITY B E GRANTED TO THE ASSESSEE. THE LD DR FAIRLY LEFT THE MATTER TO BE DECIDED BY THE BENCH IN ACCORDANCE WITH LAW. WE HAVE CONSIDERED RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND MERIT IN CONTENTIONS OF THE ASSESSEE. WE FIND FROM THE ORDER SHE ET ENTRIES IN APPEAL FILE THAT THE APPEAL MA NO. 86/MUM/2019 ARISING OUT OF ITA NO. 2898/MUM/2017 3 IN ITA NO. 2898/MUM/2017 WAS FIRST FIXED FOR HEARING ON 07.05.2019. BY AN ORDER DATED 31.07.2018 , THE HEARING IN THE APPEAL WAS PREPONED TO 28.08.2018 WHICH IS EFFECTIVELY FIRST DATE WHEN HEARING TOOK PLACE IN THI S APPEAL. WHEN THE APPEAL CAME UP FOR HEARING BEFORE THE BENCH ON 28.08.2018 WHICH WAS J BENCH , ITAT, MUMBAI , THE ASSESSEE MOVED AN ADJOURNMENT APPLICATION CITING REASONS THAT MR. N M PORWAL IS OUT OF STATION. THE J BENCH WAS PLEASED TO ADJOURN THE H EARING TO 17.10.2018. IN THE MEANTIME , THE APPEAL WAS SHIFTED TO GBENCH, MUMBAI. NO NOTICE OF THIS SHIFTING OF APPEAL FROM J BENCH TO GBENCH, ITAT, MUMBAI WAS GIVEN TO THE ASSESSEE. THE J BENCH, ITAT, MUMBAI DID NOT FUNCTION ON 17.10.2018. THE APP EAL WAS , HOWEVER, FIXED BEFORE G BENCH ON 17.10.2018. THE ASSESSEES ADVOCATE MR N M PORWAL HAS FILED AN AFFIDAVIT AND WHAT IS MADE OUT FROM THE CONTENTS OF THE AFFIDAVIT APPEARS TO BE BONAFIDE EXPLANATION AND WE HAVE NO REASONS NOT TO ACCEPT THE VERSIO N OF THE ADVOCATE OF THE ASSESSEE TO BE FALSE . IN ANY CASE, IT WAS JUST THE SECOND HEARING OF THE APPEAL BEFORE THE BENCH ON 17.10.2018 AND IT IS NOT A CASE OF CHRONIC DEFAULT BY THE ASSESSEE. THE APPEAL WAS HEARD EX - PARTE AS AN APPLICATION MOVED FOR ADJOU RNMENT WAS REJECTED BY THE BENCH ON 17.10.2018 AS WITHOUT ANY JUSTIFICATION AND REASONS. THE ORDER DATED 22.10.2018 WAS PASSED BY TRIBUNAL IN ITA NO. 2898/MUM/2017 DISMISSING APPEAL OF THE ASSESSEE. NOW , ELABORATE REASONS FOR NON APPEARANCE OF ARGUING COU NSEL BEFORE THE BENCH HAS BEEN BROUGHT ON RECORD , WHICH ARE BONAFIDE AND JUSTIFIED REASONS EXPLAINING NON APPEARANCE ON 17.10.2018 . THE SERIOUS PREJUDICE IS CAUSED TO THE ASSESSEE AS ITS APPEAL STOOD DISMISSED IN THE ABSENCE OF REPRESENTATION FROM ITS COUN SEL. PRINCIPLES OF NATURAL JUSTICE DEMANDS IN THE INSTANT MA BEFORE US THAT AN ORDER DATED 22.10.2018 IN ITA NO. 2898/MUM/2017 PASSED BY ITAT, G BENCH, MUMBAI BE RECALLED AND ONE MORE OPPORTUNITY BE GRANTED TO THE ASSESSEE WHICH WILL SUB - SERVE INTEREST OF SUBSTANTIAL JUSTICE , WHEREIN AT BEST THE ASSESSEE WILL PLEAD HIS CASE ON MERITS IN ACCORDANCE WITH LAW. THUS, BASED ON FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT INTEREST OF SUBSTANTIAL JUSTICE WILL BE BEST SERVED IN THE IN STANT CASE, IF AN ORDER DATED 22.10.2018 PASSED BY TRIBUNAL IS RECALLED AND WE HEREBY ORDER RECALL OF THE MA NO. 86/MUM/2019 ARISING OUT OF ITA NO. 2898/MUM/2017 4 ORDER DATED 22.10.2018 IN ITA NO. 2898/MUM/2017. THE REGISTRY IS DIRECTED TO FIX THIS APPEAL BEFORE REGULAR BENCH IN DUE COURSE. THE REGISTRY WILL ACC ORDINGLY ISSUE NOTICE TO BOTH THE PARTIES INTIMATING DATE OF HEARING IN ASSESSEES APPEAL IN ITA NO. 2898/MUM/2017 FOR AY 2009 - 10 . WE ORDER ACCORDINGLY. 3 . THUS, THIS M.A. NO. 86 /MUM/201 9 ARISI NG OUT OF APPEAL IN ITA NO. 2898 /MUM/20 17 FOR AY 2009 - 10 FILED BY THE ASSESSEE IS ALLOWED AS INDICATED ABOVE. ORDER PRON O UNCED IN THE OPEN COURT ON 29 .03 .201 9 29 . 03 .2019 S D / - S D / - ( C N PRASAD ) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 29 . 03 .201 9 COPY TO NISHANT VERMA SR. PRIVATE SECRETARY 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) CONCERNED, MUMBAI 4 . THE CIT - CONCERNED, MUMBAI 5 . THE DR BENCH, 6 . MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI