Income Tax Appellate Tribunal - Mumbai
Archana Ajit Vaidya, Mumbai vs Income Tax Officer - 21(1)(1), Mumbai on 26 September, 2018
आयकर अपीऱीय अधिकरण "A" न्यायपीठ मुंबई में ।
IN THE INCOME TAX APPELLATE TRIBUNAL "A" BENCH, MUMBAI
BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND
SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER
MA No. 200/Mum/2017
Arising out of ITA No. 5797/Mum/2013
Assessment Year 2009-2010
Smt. Archana Ajit Vaidya ITO-21(1)(1)
Flat no. 9, Plot no. 51, Shree C-10, Pratyakshakar Bhavan
Guru Chhaya Society, Tejpal Bandra Kurla Complex
Scheme Road 2, Vile v. Bandra,
Parle(E), Mumbai 400057 Mumbai-400051
PAN ABSPV8586B
Applicant Respondent
Applicant by Shri. Neel Khandelwal
Respondent by Shri V. Jenardhanan (CIT DR)
Date of Hearing : 27 -07-2018
Date of Pronouncement : 26-09-2018
ORDER
PER RAMIT KOCHAR, Accountant Member
The assessee has filed this miscellaneous application being MA No. 200/Mum/2017 arising out of appeal in ITA n. 5797/Mum/2013 seeking recall of an order passed by Income-Tax Appellate Tribunal, A-Bench, Mumbai (hereinafter called " the tribunal") in ITA no. 5797/Mum/2013 vide orders dated 07.11.2016 for assessment year 2009-10 , wherein the issue was decided against the assessee in the aforesaid order of tribunal dated 07.11.2016. The appeal in this case was first fixed for hearing before the Bench on two occasion on 10-02-2015 and 12-08-2015 when the Bench did not function. The appeal was thereafter fixed for hearing before the Bench on 03.03.2016 and none appeared on behalf of the assessee. The Bench issued directions to Registry on 3rd March 2016 for issuance of notice to assessee through Registered post with acknowledgement due(RPAD). The next date of hearing was fixed for 05th October 2016. The Registry sent the notice through registered post acknowledgement due(RPAD) which was duly served on the assessee on 15th April 2016 intimating next date of hearing to 1 MA No. 200/Mum/2017 Arising out of ITA No. 5797/Mum/2013 be 05th October 2016 before the A-Bench, ITAT-Mumbai. The acknowledged receipt signed by the assessee received by Registry from postal authorities is placed on record. When the appeal came up for hearing before the Bench on 05th October 2016, none appeared for assessee while Revenue was represented by Ld. DR. Effectively it is the second hearing before the tribunal on 05.10.2016 , first effective date of hearing being 03rd March 2016. When the appeal was called for hearing on 05th October 2016, the appeal was decided ex-parte by tribunal in the absence of assessee after hearing the Ld. DR vide orders dated 07th November 2016. The grounds of appeal were adjudicated by tribunal against the assessee vide orders dated 07.11.2016 in ITA no. 5797/Mum/2013. The assessee has now filed this MA on 11-04-2017 with tribunal which is filed within a period of six months as is provided u/s 254(2) of the 1961 Act. The assessee is seeking recall of an ex-parte order passed by tribunal in the absence of assessee on the ground that principle of natural justice was not adhered to and the assessee did not get chance to explain its position before the tribunal. It is the claim of the Ld. Counsel for the assessee that authorised representative was appointed by the assessee to represent assessee before the tribunal but due to oversight in making entries in his diary, the date could not be noted in the diary and hence the AR could not appear before the Bench on the date fixed for hearing on 05th October 2016. The learned counsel for the assessee has placed an affidavit dated 25-05-2018 executed by said counsel Sh. Rajiv Khandelwal,CA along with copy of his diary for 05th October 2016 is also placed on record to buttress claim that it was a bonafide human error which should be condoned by the Bench and the appellate order dated 07th November 2016 be recalled . The said affidavit dated 25th May 2018 along with copy of diary of counsel is placed in file. It is claimed that the assessee‟s two appeals were fixed before the tribunal i.e. for AY 2008-09(ITA no. 2794/Mum/2012) and also for AY 2009-10(ITA no. 5797/Mum/2013) , while inadvertently the assessee issued power of attorney only for AY 2008- 09 on 21.04.2015 while no such power of attorney was issued for assessment year 2009-10, which resulted in all the more confusion leading to missing of the date of hearing before the Bench on 05th October 2016. The 2 MA No. 200/Mum/2017 Arising out of ITA No. 5797/Mum/2013 copy of said power of attorney dated 21.04.2015 executed by the assessee for AY 2008-09 is placed on record. The assessee has also placed on record affidavit dated 13th July 2018 executed by assesee averring the aforesaid fact of issuing one power of attorney dated 21.04.2015 for AY 2008-09 in favour of counsels for appearance before the Bench while having bonafide belief that power of attorneys for both the assessment years i.e. 2008-09 and 2009-10 were issued. The said affidavit executed by assessee is also placed on record in file. Thus, a prayer is made for recall of an ex-parte order dated 07th November 2016 passed by tribunal in ITA no. 5797/Mum/2013 and it is submitted that if the order is recalled , the assessee will get an opportunity to present its case before the tribunal and at best then the tribunal can pass an order on merits in accordance with law. It was submitted that no prejudice will be caused to Revenue if an ex- parte order is recalled and at best the issues will be decided on merits by the tribunal in accordance with law.
2. The Ld. DR objected to the recall of the appellate order passed by tribunal dated 07th November 2016 in ITA no. 5797/Mum/2013 but left the matter to be decided by the bench in accordance with law.
3. We have considered rival contentions and have perused the material on record . We have observed that in the instant case first effective hearing took place before the „A‟ Bench on 03.03.2016 when none appeared on behalf of the assessee. On 3rd March 2016, the Bench directed Registry for issuance of notice RPAD to the assessee fixing the date of hearing to 05th October 2016. The Registry in compliance of direction of the Bench issued notice to the assessee RPAD intimating next date of hearing to be 05th October 2016 . The said notice was served on the assesse and acknowledgment copy sent by postal authorities is placed on record in file. The second effective hearing took place on 5.10.2016 when again none appeared for assessee while Revenue was represented by learned DR, Shri A Ramachandran. The Bench heard ld DR on the date fixed for hearing on 05th October 2016 and adjudicated the issue in appeal ex-parte in the absence of the assessee vide orders dated 07th November 2016 in ITA no.
3 MA No. 200/Mum/2017Arising out of ITA No. 5797/Mum/2013 5797/Mum/2013 wherein issue was decided against the assessee. The assessee has now filed this MA seeking recall of the appellate order dated 07th November 2016 passed by the tribunal. The explanations are offered for non-appearance on the date of hearing on 05th October 2016 which are supported by affidavits and other evidences which are placed in file. It is claimed that an ex-parte order dated 7th November 2016 was passed by tribunal in the absence of assessee which infringed principle of natural justice and the assessee did not get chance to explain its position before the tribunal. It is the claim of the Ld. Counsel for the assessee that authorised representative was appointed by the assessee to represent assessee before the tribunal but due to oversight in making entries in his diary, the date could not be noted in the diary and hence the AR could not appear before the Bench on the date fixed for hearing on 05th October 2016. The learned counsel for the assessee has placed an affidavit dated 25-05-2018 executed by said counsel Sh. Rajiv Khandelwal along with copy of his diary for 05th October 2016 which is placed on record to buttress claim that it was a bonafide human error which should be condoned by the Bench and the appellate order dated 07th November 2016 be recalled . The said affidavit dated 25th May 2018 along with copy of diary of counsel is placed in file. It is claimed that the assessee‟s two appeals were fixed before the tribunal i.e. for AY 2008-09(ITA no. 2794/Mum/2012) and also for AY 2009-10(ITA no. 5797/Mum/2013) for which counsel was appointed to represent assessee before tribunal, while inadvertently the assessee issued power of attorney only for AY 2008-09 on 21.04.2015 while in-fact no such power of attorney was issued for assessment year 2009-10 albeit counsel was appointed to represent assessee, which resulted in all the confusion leading to missing of the date of hearing before the Bench on 05th October 2016 for AY 2009-10. The copy of said power of attorney dated 21.04.2015 for AY 2009-10 is placed on record. The assessee has also placed on record affidavit dated 13th July 2018 executed by assessee averring the aforesaid fact of issuing one power of attorney for AY 2008-09 in favour of counsels for appearance before the Bench while assessee having bonafide belief that power of attorneys for both the years were issued in favour of the assessee to 4 MA No. 200/Mum/2017 Arising out of ITA No. 5797/Mum/2013 represent her before the tribunal for both the appeals i.e. AY 2008-09 and 2009-10. The said affidavit is also placed on record. We after hearing both the parties accept the contentions of the assessee as to bonafide of an aforesaid explanation in not appearing before the tribunal on the appointed day of hearing on 05th October 2016 wrt appeal for AY 2009-10 on account of a bonafide mistake and human error leading to non appearance on appointed day of hearing and recall our order in ITA No. 5797/Mum/2013 dated 07th November 2016. The Registry is directed to place appeal in ITA no. 5797/Mum/2016 before Regular Bench in due course for which notices shall be issued to both the parties intimating date of hearing in advance. We order accordingly.
4. Thus, this M.A. No. 200/Mum/2017 arising out of appeal in ITA no. no. 5797/Mum/2013 for AY 2009-10 is allowed as indicated above.
Order pronounced in the open court on 26.09.2018
आदे श की घोषणा खल
ु े न्यायालय में ददनाांकः 26.09.2018 को की गई ।
Sd/- Sd/-
(MAHAVIR SINGH) (RAMIT KOCHAR)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Mumbai, dated: .09.2018
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
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