SHREE GAYATRI CONSTRUCTIONS AND DEVELOPERS,MUMBAI V. INCOME TAX OFFICER -42(1)(5), MUMBAI

MA 323/MUM/2025

AI Insights

The case involves Shree Gayatri Constructions & Developers, the appellant, who filed a Miscellaneous Application seeking the recall of an ex-parte order passed by the Income Tax Appellate Tribunal. The ex-parte decision was made because the assessee did not appear at the hearing, which was later attributed to a failure in communication regarding an adjournment request. The Tribunal acknowledged the procedural error and the principles of natural justice, leading to the decision to recall the earlier order and schedule a new hearing.

• Counselvise Citation: [2026] 140 COUNSELVISE.COM (IT) 843337 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-03-2026
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 19-11-2025
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LEYAQAT ALI AFAQUI
• Assessee Lawyers: POOJAN MEHTA
• Keywords: Set aside; Principle of natural justice; Procedural lapse

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “C” MUMBAI BEFORE SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND SHRI ANIKESH BANERJEE (JUDICIAL MEMBER) MA No.323/MUM/2025 (Arising out of ITA Nos. 2862/MUM/2025) Assessment Years: 2007-08 Shree Gayatri Constructions & Developers Plot No. 679/B 6th, Gayatri Palace, Kora Kendra Ground, Derasar Lane, Near Ram Nagar, Borivali (West), Mumbai-400092 Vs. ITO-42(1)(5) Kautilya Bhavan, Bandra (East), Mumbai-400051 PAN NO- AAGFS8495K Appellant Respondent Assessee by : Shri Poojan Mehta. Department by : Shri Leyaqat Ali Afaqui, Sr. DR Date of Hearing : 09/01/2026 Date of pronouncement : 02/03/2026 ORDER PER OM PRAKASH KANT, AM The Assessee has moved this Miscellaneous Application under Section 254(2) of the Income Tax Act, 1961, seeking the recall and rectification of the order passed by this Tribunal on 8th August 2025, in ITA No. 2862/MUM/2025 pertaining to the Assessment Year 2007-08. Printed from counselvise.com Shree Gayatri Construction & Developers 2 MA No. 323/MUM/2025 2. Before us, the Learned Counsel for the assessee submitted that appeal of the assessee was fixed for hearing on 5th June, 2025 and the assessee made a request on 3rd June, 2025 for adjournment for appointing a counsel, which was addressed to the Assistant Registrar, Income Tax Appellate Tribunal, Mumbai. The Ld. Counsel submitted that probably said request for adjournment was not placed before the Bench and, therefore, appeal of the assessee was decided ex-parte qua the assessee, without considering request of the assessee. The Ld. Counsel accordingly submitted that in terms of Rule 24 of the ITAT Rules, 1963, the assessee was prevented by way of sufficient cause in making appearance and, therefore, appeal may be recalled for hearing afresh. 3. We have heard rival submission of the parties and perused the relevant materials on record. The appeal was decided ex parte due to non-appearance of the assessee on the date of hearing fixed on 5th June, 2025. The assessee was ex parte before the CIT(A) also and, therefore, Tribunal has restored the matter back to the file of Ld. CIT(A). The Ld. Counsel for the assessee before us filed a copy of the request for adjournment which according to him was filed on 3rd June, 2025 but the said request was addressed by the assessee to the Assistant Registrar and was not placed before the Bench at the time of the hearing and, therefore, appeal was heard ex-parte qua the assessee. Printed from counselvise.com Shree Gayatri Construction & Developers 3 MA No. 323/MUM/2025 4. Having gone though the acknowledgment of the adjournment petition dated 3rd June 2025, we are opinion that the bedrock of judicial proceedings is the right of a party to be heard. The record confirms that while the Assessee had proactively sought an adjournment, the same was not brought to the notice of the Bench. Proceeding ex-parte under such circumstances, while technically valid on the record then available, inadvertently resulted in a violation of the principles of natural justice. 5. Now, assessee is requesting for recalling the appeal invoking Rule 24 of the ITAT Rules1963, which empowers the Tribunal to set aside an ex-parte order if the appellant demonstrates \"sufficient cause\" for non-appearance. In the present case, the Assessee’s act of filing an adjournment request two days prior to the hearing establishes bona fide intent to prosecute the appeal. The failure of this request to reach the Bench constitutes a procedural irregularity that should not prejudice the litigant 6. In view of the foregoing, we are satisfied that the Assessee was prevented by sufficient cause from appearing on the appointed date. To ensure a decision on merits and in the interest of substantial justice, we deem it fit to recall our earlier order dated 8th August 2025. 7. The appeal is hereby restored to its original number. The matter is scheduled for a fresh hearing on 16th March 2026. Printed from counselvise.com Shree Gayatri Construction & Developers 4 MA No. 323/MUM/2025 Since this date was communicated to both parties in open court, the issuance of a separate notice is dispensed with. 8. In the result, the application of the assessee is considered under Rule 24 of ITAT Rules and accordingly allowed. Order pronounced in the open Court on 02/03/2026. Sd/- Sd/- (ANIKESH BANERJEE) (OM PRAKASH KANT) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai; Dated: 02/03/2026 Ankit, Sr. P.S. Copy of the Order forwarded to : 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. BY ORDER, //True Copy// (Assistant Registrar) ITAT, Mumbai Printed from counselvise.com "