Income Tax Appellate Tribunal - Mumbai
Jhunjhunwala Distributors P.Ltd, ... vs Acit Cen Cir 11, Mumbai on 22 February, 2019
आयकर अपीलीय अधिकरण "F" न्यायपीठ मब
ुं ई में ।
IN THE INCOME TAX APPELLATE TRIBUNAL " F" BENCH, MUMBAI
श्री महावीर स हिं , न्याययक दस्य एविं श्री शमीम याहया लेखा दस्य के मक्ष ।
BEFORE SRI MAHAVIR SINGH, JM AND SRI SHAMIM YAHYA, AM
ववववध आवेदन. / MA No. 664/Mum/2018
( Arising in ITA No. 698/Mum/2011 A.Y:2005-06)
ववववध आवेदन. / MA No. 665/Mum/2018
( Arising in ITA No. 697/Mum/2011 A.Y:2004-05)
ववववध आवेदन. / MA No. 666/Mum/2018
( Arising in ITA No. 696/Mum/2011 A.Y:2003-04)
ववववध आवेदन. / MA No. 667/Mum/2018
( Arising in ITA No. 695/Mum/2011 A.Y:2002-03)
ववववध आवेदन. / MA No. 668/Mum/2018
( Arising in ITA No. 701/Mum/2011 A.Y:2008-09)
ववववध आवेदन. / MA No. 669/Mum/2018
( Arising in ITA No. 700/Mum/2011 A.Y:2007-08)
ववववध आवेदन. / MA No. 670/Mum/2018
( Arising in ITA No. 699/Mum/2011 A.Y:2006-07)
Jhunjhunwala Distributors Pvt. Asst. CIT, Central Circle-11,
Ltd. Mumbai-400 020
Flat No. 41/42, 5th Floor, Vs.
Meghna Apartment, S. V. Road,
Santacruz (W),Mumbai-400 054
(ApIlaaqaI- / Appellant) .. (p`%yaqaaI- / Respondent)
स्थायी ले खा िं . / PAN No. AAACJ 9152 D
अपीलाथी की ओर े / Appellant by : S/Shri Prakash G Jhunjhunwala
Abhishek Jhunjhunwala, ARs
प्रत्यथी की ओर े / Respondent by : Shri Nishant Samaiya , DR
2
MA s no. 66 4- 67 0 / Mu m/ 20 1 8
ुनवाई की तारीख / Date of hearing: 22-02-2019
घोषणा की तारीख / Date of pronouncement : 22-02-2019
AadoSa / O R D E R
महावीर स हिं , न्याययक दस्य/
PER MAHAVIR SINGH, JM:
By way of these seven Misc. Applications, the assessee has requested for recalling of ex-parte order of the Tribunal passed vide order dated 07.04.2016. It was contended by the learned Counsel that the ITAT dismiss the appeals ex-parte due to non-prosecution and non- representation. The assessee before us narrated the posting date for hearing and adjournments as under: -
Date of hearing Compliance 19.08.2013 to 31.12.2014 Non-compliance 20.01.2015 Adjournment letter filed 15.04.2015 to 29.03.2016 Non-compliance. 2. The learned Counsel for the assessee sated that non-
representation of appeals and non-furnishing of relevant documents/ paper books as occurred under the bonafide reasons beyond control of the assessee and for this assessee filed an affidavit stating the flowing reasons: -
"I Sushil Jhunjhunwala having my place of residence situated at Flat No. 41, Floor, Meghna Apartment, S.V. Road, Santacruz (West), Mumbai-400 054 do hereby declare on solemn affirmation as under:-
1.0 THAT, I am the director of MIs.
Jhunjhunwala Distributors Pvt Ltd which is assessed to Income Tax under the jurisdiction of 3 MA s no. 66 4- 67 0 / Mu m/ 20 1 8 Asst. Commissioner of Income Tax, Central Circle-I1, Mumbai holding PAN No. AAACJ9152D;
2.0 THAT, Hon'ble ITAT had dismissed the appeals of our company ex-parte for the reason of non-prosecution and non-representation by the counsel before Hon'ble bench;
3.0 THAT, I declare that the 2ND appeal could not be represented in time and I could not furnish the relevant documents/paper-book before Hon'ble ITAT under the bonafide reasons and compelling circumstances beyond my control stated as under:-
a) My son Late Mr. Varun S. Jhunjhunwala, Chartered Accountant was handling the accounts and tax related matters of our company. He was diagnosed with serious illness of Chronic Pancreatitis and was hospitalized for several times and undergone major surgeries. He suffered from hemorrhages in brain and went into Coma and ultimately died on 19/11/2013. Some of the hospital admission records (copies enclosed) are summarized as under:
4MA s no. 66 4- 67 0 / Mu m/ 20 1 8 The other medical records evidencing the serious medical illness of my deceased son is annexed herewith. On death of my son, I was terribly disturbed and could not attend the Income tax Appellate proceedings. Further, I am a heart patient having undergone heart bypass surgery, high BY and diabetes went into mental depression and was bed-ridden and I had completely stopped attending the business matters and the regular business of the company was completely closed down.
The serious medical illness and ultimate death of my son CA Varun S Jhunjhunwala leading to my mental depression and complete closure of business had precluded me to represent the appeals before Hon'ble ITAT;
b) There also existed serious family disputes of my daughter (Ritika S Jhunjhunwala) with her in-laws due to which Police FIR and divorce petition were filed, detailed summarized as under:
Date of hearing Compliance
12.04.2014 Disputes arose with family
members (in-laws)
06.04.2015 Police Non-cognizable (NC)
Field
23.04.2015 Police FIR was filed
13.10.2015 Suit filed before Addl. Chief
Metropolitan Magistrate Court
(pending as on date)
5
MA s no. 66 4- 67 0 / Mu m/ 20 1 8
The existence of serious disputes
accompanied with Family Court litigations had terribly disturbed me and my family as a result of which the representation could not he made before Hon'ble ITAT;
c) The other director Shri Sudhir S Jhunjhunwala was mostly out of Mumbai and was extremely occupied in handling his civil and criminal litigation mailers before courts at Madhubani, Bihar and Mumbai. The said director was served with the summons and arrest warrants relating to financial transactions at Bihar.
The existence of Court litigations had precluded him to represent the appeal before Hon'ble ITAT;
d) I did not even have a Chartered Accountant to represent the appeal as I was facing with acute shortage of funds and did not have enough funds to pay their profession fees;
4.0 I make a humble prayer before Hon'ble Income Tax Appellate Tribunal, Mumbai to consider the bonafide reasons, adopt a liberal approach and recall the order passed ex-parte and allow a final opportunity to represent the appeals on merits."
3. When the same was put to the learned Sr. Departmental Representative, he only stated that the Tribunal has passed order after 6 MA s no. 66 4- 67 0 / Mu m/ 20 1 8 considering the material available on record on the facts of the case. According to him, the Tribunal order is on merits and hence, need not be recalled.
4. After hearing both the sides and going through the facts and circumstances of the case, we noted that the cause stated for non- representation and non-prosecution in the above affidavit seems reasonable and not rebutted by the Sr. Departmental Representative. Even otherwise, the order by Tribunal is ex-parte and the assessee is under bonafide belief that non-prosecuting/ non-representation is not due to assessee's fault. Hence, in term of the provision of Rule 24 of the Income Tax (Appellate Tribunal) Rules 1963, we are satisfied that there was sufficient cause for non-appearance when the appeal was called for hearing and hence, we recall our order dated 07.04.2016. The appeals are refixed for hearing on 22.04.2019, on which date, the assessee will co-operate and file all the relevant documents one week before the date of hearing and the assessee will pursue the matter. This is announced in open court and no further notice will be sent to either of the parties for hearing.
5. In the result, all the MAs of the assessee are allowed.
Order pronounced in the open court on 22-02-2019.
Sd/- Sd/-
(शमीम याहया / SHAMIM YAHYA) (महावीर स ह
िं /MAHAVIR SINGH)
(लेखा दस्य / ACCOUNTANT MEMBER) (न्याययक दस्य/ JUDICIAL MEMBER)
मुिंबई, ददनािंक/ Mumbai, Dated: 22-02-2018 सदीप सरकार, व.निजी सधिव / Sudip Sarkar, Sr.PS 7 MA s no. 66 4- 67 0 / Mu m/ 20 1 8 आदे श की प्रनिललपप अग्रेपिि/Copy of the Order forwarded to :
1. अपीलाथी / The Appellant
2. प्रत्यथी / The Respondent.
3. आयकर आयुक्त(अपील) / The CIT(A)
4. आयकर आयुक्त / CIT
5. ववभागीय प्रयतयनधध, आयकर अपीलीय अधधकरण, मिंब ु ई / DR, ITAT, Mumbai
6. गार्ड फाईल / Guard file.
आदे शािसार/ BY ORDER, त्यावपत प्रयत //True Copy// उप/सहायक पुंजीकार (Asstt. Registrar) आयकर अपीलीय अधिकरण, मुिंबई / ITAT, Mumbai