PARESH BHAVANJI VORA, MUMBAI V. Deputy COMMISSIONER OF INCOME TAX - 30(2), MUMBAI

MA 97/MUM/2018

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 0651 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2010-2011
• Appeal Filed On: 12-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S ABIRAMKAR THIKEYAN
• Assessee Lawyers: NEELAM C JHAVERI

Judgement Text

P A G E | 1 M.A. NO. 97/MUM/2018 (ARISING OUT OF ITA NO. 6105/MUM/2016) SHRI PARESH B. VORA VS. DY. COMMISSIONER OF INCOME TAX - 30(2) IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, M UMBAI BEFORE SHRI B.R.BASKARAN, AM AND SHRI RAVISH SOOD, JM M.A. NO. 97/MUM/2018 (ARISING OUT OF ITA NO. 6105/MUM/2016 ) ( / ASSESSMENT YEAR:2010 - 11 ) SHRI PARESH B. VORA FLAT NO. 503, 5 TH FLOOR, MAHARAJA APARTMENT, S.V. ROAD, OFF TELEPHONE EXCHANGE, MALAD (WEST),MUMBAI - 400 050 / VS. DY. COMMISSIONER OF INCOME TAX - 30(2), MUMBAI. ./ ./ PAN NO. AAAPV3819J ( / APPLICANT) : ( / RESPONDENT ) / APPLICANT BY : SHRI NEELAM C. JHAVERI , A.R / RESPONDENT BY : SHRI S. ABIRAMKAR THIKEYAN , SR. D.R / DATE OF HEARING : 24.08 .2018 / DATE OF PRONOUNCEMENT : 2 8 .09 .2018 / O R D E R PER RAVISH SOOD, JUDICIAL MEMBER: ORDER U/S 254(2 THE PRESENT MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE UNDER SEC. 254(2) OF THE INCOME TAX, 1961 (FOR SHORT ACT) ARISES FROM THE ORDER PASSED BY THE TRIBUNAL UNDER SEC. 254(1) IN ITA NO. 6105/MUM/2016, DATED 30.08.2017 FOR A.Y 2010 - 11. THE LD. AUTHO RIZED REPRESENTATIVE (FOR SHORT A.R) OF THE ASSESSEE , AT THE VERY OUTSET OF THE HEARING OF THE APPLICATION SUBMITTED THAT THE APPEAL FILE D BY THE ASSESSEE WAS DISMISSED IN LIMINE BY P A G E | 2 M.A. NO. 97/MUM/2018 (ARISING OUT OF ITA NO. 6105/MUM/2016) SHRI PARESH B. VORA VS. DY. COMMISSIONER OF INCOME TAX - 30(2) THE TRIBUNAL , VIDE ITS EX - PARTE ORDER DATED 30.08.2017 FOR A.Y 2010 - 11. IT WAS SUBMITTED BY THE LD. A.R THAT THE TRIBUNAL IN ITS AFORESAID ORDER HAD OBSERVED , THAT THOUGH TH E ASSESSEE WAS INTIMATED ABOUT CERTAIN DEFECT S IN THE M EMORANDUM OF APPEAL, VIDE A NOTICE DATED 06.07.2017 , WITH A DIRECTION TO RECTIFY THE SAME WITHIN A PERIOD OF 10 DAYS, HOWEVER , THE NEEDFUL WAS NOT DONE. FURTHER, IT WAS OBSERVED BY THE TRIBUNAL THAT DESPITE THE FACT THAT THE HEARING OF THE APPEAL WAS FIXED FOR 14.08.2007, WHICH THEREAFTER WAS ADJOURNED TO 29.08.2017, BUT ON NEITHER OF THE SAID OCCASION S THE ASSESSEE APPELLANT HAD PUT UP AN APPEARANCE. IT WAS SUBMITTED BY THE LD. A.R THAT THE TRIBUNAL IN THE BACKDROP OF THE AFORESAID FACTS HAD BY WAY OF AN EX - PARTE ORDER, DATED 30.08.2017 DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE. 2. THE LD. A.R FOR THE ASSESSEE APPLICANT REBUTTING THE AFORESAID OBSERVATIONS OF THE TRIBUNAL, SUBMITTED THAT THE FACT WAS THAT NEITHER THE ASSESSEE WAS IN RECEIPT OF THE NOTICE DATED 06.07.2017 CALLING UPON HIM TO RECTIFY THE DEFECT IN MEMORANDUM OF APPEAL, NOR WAS I NTIMATED AS REGARDS THE AFOREMENTIONED RESPECTIVE DATES OF HEARING OF THE APPEAL VIZ. 14.08.2017 AND 29.08.2017. RATHER, IT WAS SUBMITTED BY THE LD. A.R , THAT THE ASSESSEE WHO HAD PREFERRED AN APPEAL AGAINST THE ORDER OF THE CIT(A), DATED 11.07.201 6 WAS PU T TO NOTICE ABOUT THE HEARING OF THE APPEAL ON 18.09.2018. ON THE BASIS OF THE AFORESAID FACTS, IT WAS AVERRED BY THE LD. A.R THAT THE FAILURE ON THE PART OF THE ASSESSEE TO RECTIFY THE DEFECT IN THE MEMORANDUM OF APPEAL, AS WELL AS TO PUT UP AN APPEARAN CE BEFORE THE TRIBUNAL ON THE AFOREMENTIONED RESPECTIVE DATES OF HEARING OF THE APPEAL , HAD OCCASIONED FOR CIRCUMSTANCES WHICH WERE ABSOLUTELY BEYOND THE CONTROL OF THE ASSESSEE. THE LD. A.R SUBMITTED THAT ON THE BASIS OF THE AF ORESAID FACTS THE EX - PART E ORDER PASSED BY THE TRIBUNAL ON 30.08.2017 MAY BE RECALLED. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE (FOR SHORT D.R) DID NOT REBUT THE AFORESAID S UBMISSIONS PLACE D BEFORE US ON BEHALF OF THE ASSESSEE. 3. WE HAVE HEARD THE AUTHORIZED REPRESENTATIV ES OF BOTH THE PARTIES, PERUSED THE ORDER OF THE TRIBUNAL PASSED UNDER SEC. 254(1) , DATED P A G E | 3 M.A. NO. 97/MUM/2018 (ARISING OUT OF ITA NO. 6105/MUM/2016) SHRI PARESH B. VORA VS. DY. COMMISSIONER OF INCOME TAX - 30(2) 30.08.2017 , AND THE MATERIAL AVAILABLE ON RECORD. ON A PERUSAL OF THE RECORDS , THE AFORESAID CONTENTION RAISED BY THE ASSESSEE IN HIS APPLICATION FILED UNDER SEC. 254(2) , AND FURTHER AVE RRED BEFORE US BY THE LD. A.R, ARE FOUND TO BE IN ORDER. WE ARE OF THE CONSIDERED VIEW , THAT THE FAILURE ON THE PART OF THE ASSESSEE TO RECTIFY THE DEFECT IN THE MEMORANDUM OF APPEAL WITHIN THE STIPULATED TIME PERIOD , AS WELL AS NOT PUTTING UP AN APPEARANCE ON THE RESPECTIVE DATES ON WHICH THE HEARING OF THE APPEAL WAS FIXED, HAD OCCASIONED ON ACCOUNT OF CI RCUMSTANCES WHICH WERE BEYOND HIS CONTROL . WE THUS, IN ALL FAIRNESS AND IN THE INTEREST OF JUSTICE SET ASIDE THE EX - PARTE ORDER PASSED BY THE TRIBUNAL UNDER SEC. 254(1), IN ITA NO. 6105/MUM/2016, DATED 30.08.2017. THE REGISTRY IS DIRECTED TO REFIX THE AFORESAID APPEAL FOR FRESH HEARING ON 11.10.201 8. WE THUS, IN TERMS OF OUR AFORESAID OBSERVATIONS ALLOW THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE. 4. THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED O N 2 8 . 09.2018 S D / - S D / - ( B.R.BASKARAN ) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 2 8 .09.2018 PS. ROHIT / 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, P A G E | 4 M.A. NO. 97/MUM/2018 (ARISING OUT OF ITA NO. 6105/MUM/2016) SHRI PARESH B. VORA VS. DY. COMMISSIONER OF INCOME TAX - 30(2) / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI