PUSHPA NARESHKUMAR DHANANIA, MUMBAI V. INCOME TAX OFFICER WARD 17(2)(5), MUMBAI

MA 92/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5847 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 09-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIA
• Assessee Lawyers: HARISH P SHAH
• Keywords: Set aside

Judgement Text

P A G E | 1 M.A.92/MUM/2018 A.Y. 2009 - 10 (ARISING OUT OF ITA NO. 2596/MUM/2017) PUSHPA NARESH KUMAR DHANANIA VS. THE INCOME TAX OFFICER, WARD - 17(2)(5) IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER M.A. NO. 92/MUM/2018 (ARISING OUT OF ITA NO. 2596/MUM/2017 ) (ASSESSMENT YEARS: 2009 - 10 ) PUSHPA NARESH KUMAR DHANANIA , 24, SARASWATI SADAN, 1 ST FLOOR, 113, KESHAV NAIK ROAD, MUMBAI 400 009 VS. THE INCOME TAX OFFICER, WARD - 17(2)(5) MUMBAI PAN ADWPD7778D (APPLICANT) (RESPONDENT) APPLICANT BY: SHRI HARISH P. SHAH , A.R RESPONDENT BY: SHRI CHAITANYA ANJARIA , D.R DATE OF HEARING: 05 .04 .2019 DATE OF PRONOUNCEMENT: 2 4 .04.2019 O R D E R PER RAVISH SOOD, JM: THE PRESENT MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE ON 09.02.2018 ARISES FROM THE ORDER PASSED BY THE TRIBUNAL IN THE CASE OF SMT. PUSHPA NARESH KUMAR DHANANIA VS. ITO, WARD 17(2)(5), MUMBAI IN ITA NO. 2569/MUM/2017, DATED 21.06.2017. AS THE AFORES AID ORDER AS DEPOSED BY THE ASSE SSEE WAS RECEIVED ON 17.08.2007, THEREFORE , THE PRESENT MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS WITHIN THE TIME LIMIT ENVISAG ED IN SEC. 254(2 ) OF THE INCOME TAX ACT, 1961 (FOR SHORT I.T. ACT). P A G E | 2 M.A.92/MUM/2018 A.Y. 2009 - 10 (ARISING OUT OF ITA NO. 2596/MUM/2017) PUSHPA NARESH KUMAR DHANANIA VS. THE INCOME TAX OFFICER, WARD - 17(2)(5) 2. IN THE COURSE O F HEARING OF THE APPLICATION , IT WAS SUBMITTED BY THE LD. AUTHORIZED REPRESENTATIVE (FOR SHORT A.R) FOR THE ASSESSEE APPLICANT THAT THE TRIBUNAL HAD DISMISSED THE APPEAL OF THE ASSESSEE APPELLANT BY WAY OF AN EX - PARTE ORDER, DATED 21.06.2017. THE LD. A.R EXPLAINING THE REASON LEADING TO FAILURE ON THE PART OF THE ASSESSEE TO PUT UP AN APPEARANCE ON THE STIPULATED DATE OF HEARING OF THE APPEAL , SUBMITTED THAT THE SAME HAD OCCASIONED FOR THE REASON THAT THE ASSESSEE WAS NOT PUT TO NOTICE AS REGARDS THE DATE OF HEARING OF THE APPEAL. THE LD. A.R. TAKING US THROUGH THE FACTS STATED IN THE MISCELLANEOUS APPLICATION , SUBMITTED THAT THE NOTICE OF HEARING OF THE APPEAL WAS RETURNED AS UNSERVED BY THE POSTAL AUTHORITIES FOR THE REASON THAT INSUFFICIENT ADDRESS WAS THEREIN PROVIDED. IN ORDER TO FORTIFY HIS AFORESAID CLAIM THE LD. A.R TOOK US THROUGH THE ENDORSEMENT S OF THE POSTAL AUTHORITIES ON THE COPY OF THE ENVELOPE BY WHICH THE ASSESSEE WAS SOUGHT TO BE INTIMATED ABOUT THE DATE OF HEARING OF THE APPEAL. I T WAS SUBMITTED BY THE LD. A.R THAT THE AFORESAID COPIES WERE OBTAINED BY HIM PURSUANT TO AN APPLICATION DATED 03.10.2017 FILED WITH THE REGISTRAR, ITAT, MUMBAI. THE LD. A.R AVERRED THAT IN THE BACKDROP OF THE AFORESAID FACTS THE EX - PARTE ORDER PASSED BY T HE TRIBUNAL MAY BE SET ASIDE AND THE APPEAL OF THE ASSESSEE BE RESTORED. 3. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE (FOR SHORT D.R) OBJECTED TO THE SEEKING OF RESTORATION OF THE APPEAL BY THE COUNSEL FOR THE ASSESSEE. 4. WE HAVE HEARD THE AUTHO RIZED REPRESENTATIVES FOR BOTH THE PARTIES AND HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, THE NOTICE INTIMATING THE DATE OF HEARING OF THE APPEAL TO THE ASSESSEE APPLICANT WAS RETURNED BY THE POSTAL AUTHORITIES WITH AN ENDORSEMENT OF INSUF FICIENT ADDRESS. THE LD. A.R HAD BEEN ABLE TO SUBSTANTIATE HIS P A G E | 3 M.A.92/MUM/2018 A.Y. 2009 - 10 (ARISING OUT OF ITA NO. 2596/MUM/2017) PUSHPA NARESH KUMAR DHANANIA VS. THE INCOME TAX OFFICER, WARD - 17(2)(5) AFORESAID CONTENTION BY PLACING ON RECORD DOCUMENTARY EVIDENCE AS HAD BEEN GATHERED BY HIM ON AN APPLICATION FILE D WITH THE REGISTRAR, ITAT, MUMBAI. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION AN D ARE OF THE CONSIDERED VIEW THAT NOW WHEN THE ASSESSEE INAD VERTENTLY WAS NOT PUT TO NOTICE AS REGARDS THE DATE OF HEARING OF THE APPEAL, THEREFORE, FOR THE SAID REASON HE HAD FAILED TO PUT UP AN APPEARANCE AT THE TIME OF HEARING OF THE APPEAL. IN THE BACK DROP OF THE AFORESAID FACTS, WE ARE OF THE CONSIDERED VIEW THAT IN ALL FAIRNESS AS PER RULE 24 OF THE A PPELLATE TRIBUNAL RULES, 1963 THE EX - PARTE ORDER PASSED BY THE TRIBUNAL ON 21.06.2017 REQUIRES TO BE SET ASIDE AND THE APPEAL OF THE ASSESSEE BE RESTORED . 5. WE THUS IN TERMS OF OUR AFORESAID OBSERVATIONS ALLOW THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE APPLICANT. 6. THE APPEAL OF THE ASSESSEE IS RESTORED AND THE REGISTRY IS DIRECTED TO FIX THE APPEAL FOR FRESH HEARING. ORDER PR ONOUNCED IN THE OPEN COURT ON 2 4 . 04.2019 S D / - S D / - ( SHAMIM YAHYA ) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 24 .04.2019 PS. ROHIT P A G E | 4 M.A.92/MUM/2018 A.Y. 2009 - 10 (ARISING OUT OF ITA NO. 2596/MUM/2017) PUSHPA NARESH KUMAR DHANANIA VS. THE INCOME TAX OFFICER, WARD - 17(2)(5) / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI