Income Tax Appellate Tribunal - Mumbai
Multi Act Trade And Investments Private ... vs Income Tax Officer 2(2)(3), Mumbai on 6 August, 2018
IN THE INCOME TAX APPELLATE TRIBUNAL,
MUMBAI BENCH "B", MUMBAI
BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND
SHRI RAJESH KUMAR, ACCOUNTANT MEMBER
MA No.173/M/2017
(Arising out of ITA No.1338/M/2013)
Assessment Year: 2009-10
M/s. Multi Act Trade & Income Tax Officer,
Investments Pvt. Ltd., Ward-2(2)(3),
nd
2 Floor, ICC Chambers Aayakar Bhavan,
Vs.
II, M.K. Road,
Saki Vihar Road, Powai, Mumbai - 400020
Mumbai - 400 072
PAN: AAABCM0157E
(Appellant) (Respondent)
Present for:
Assessee by : Shri Satish R. Mody, A.R.
Revenue by : Shri Rajat Mittal, D.R.
Date of Hearing : 20.07.2018
Date of Pronouncement : 06.08.2018
ORDER
Per Rajesh Kumar, Accountant Member:
By way of this miscellaneous application the assessee has prayed for recalling the order of the Tribunal dated 19.08.2015 passed in ITA No. 1338/M/2013.
2. The Ld. A.R. submitted before the Bench that the appeal was dismissed by the Hon'ble Bench on an application filed by the assessee dated 09.06.2015 wherein the C.A. of the assessee requested the Bench that in view of the order passed under section 143(3) read with section 147 of the Income Tax Act, 1961, the appeal may kindly be allowed to be withdrawn.
MA No.173/M/2017 2 (Arising out of ITA No.1338/M/2013) M/s. Multi Act Trade & Investments Pvt. Ltd.
The Ld. A.R. submitted that the ground which involved in the present appeal was to be taken up before the Ld. CIT(A) in the appellate proceedings to be filed against the order passed by the AO under section 143(3) read with section 147 of the Act and thus only under this erroneous belief the application for withdrawal of appeal was filed and the Hon'ble Bench allowed the withdrawal of appeal by dismissing the same. The ld AR further submitted that the ld CIT(A) while deciding the appeal filed against the order passed u/s 143(3) r.w.s. 147 of the Act dismissed the ground as not maintainable The Ld. A.R. submitted that since this is a mistake on the part of the counsel of the assessee which has deprived the assessee from seeking justice from this Hon'ble Tribunal and this has happened only because of the reopening of assessment 2009- 10, on the same issue which was before the Hon'ble Tribunal. Now the Ld. CIT(A) while deciding the appeal against the order passed u/s 143(3) r.w.s. 147 of the Act dismissed the same ground raised by the assessee before the CIT(A), as was raised before ITAT in the appeal withdrawn, as not maintainable . Therefore the assessee has filed the present miscellaneous application to recall the order dated 19.08.2015. The ld AR also submitted that the assessee had withdrawn the appeal on the advice of the chartered accountant whose affidavit has also been filed during the hearing affirming that the appeal had been withdrawn on his advice. The ld AR submitted that it was under bonafide belief that appeal before the ITAT can not be pursued in the light of the order passed by the AO u/s 143(3) r.w.s. 147 of the Act.
MA No.173/M/2017 3 (Arising out of ITA No.1338/M/2013) M/s. Multi Act Trade & Investments Pvt. Ltd.
The ld AR stated that it was a mistake apparent on the part of the assessee and is covered u/s 254(2)of the Act. Now the assessee should be allowed to revive the appeal which has been dismissed by the Hon'ble Tribunal on an application by the counsel of the assessee acting on an erroneous belief so that assessee could get justice by way of disposal of the said appeal on merit after hearing the assessee.
3. The Ld. D.R., on the other hand, strongly objected to the arguments of the Ld. A.R. by pointing that the withdrawal of the appeal was requested by the counsel of the assessee itself and therefore it should not be allowed to be recalled or revived.
4. We have heard the rival submissions of both the parties and perused the material on record. The undisputed facts are that the appeal of the assessee was dismissed as withdrawn upon an application filed by the assessee before the Bench text whereof reads as "In view of the order passed under section 143(3) read with section 147 of the Act, 1961 the assessee may be allowed to withdraw the appeal". The issue raised by the assessee before the Tribunal by way of the above appeal was also a subject matter of the reopening proceeding initiated under section 147 against the assessee which culminated ultimately into framing of assessment order under section 143(3) read with section 147 which was challenged before the Ld. CIT(A). So assessee's counsel withdrew the appeal before the Tribunal on the belief that the MA No.173/M/2017 4 (Arising out of ITA No.1338/M/2013) M/s. Multi Act Trade & Investments Pvt. Ltd.
issue would be agitated before the Ld. CIT(A). The ground raised by the assessee before the CIT(A) was dismissed as not maintainable in the appeal filed against the order passed under section 143(3) read with section 147 of the Act dated 24.03.2015. Now the issue before us is whether the assessee should be allowed to revive the appeal so that the order is passed on merit after hearing both the parties or the assessee has lost its right in view of the application of withdrawal of appeal filled before the Tribunal. In our considered view the mechanism of appeal has been provided to impart justice to the aggrieved party against the order of lower authority. Now if in the present case the assessee is denied that revival of appeal such right of the assessee would be infringed though attributable to its own action. But the fact of the matter is that the assessee acted on the advice of the counsel under bonafide belief. Having considered the facts of the case we are of the view that assessee should be granted an opportunity to be heard on merit and accordingly in interest of justice we recall of order dated 19.08.2015 to be posted for hearing in the regular course.
5. The miscellaneous application filed by assessee is allowed.
Order pronounced in the open court on 06.08.2018.
Sd/- Sd/-
(Joginder Singh) (Rajesh Kumar)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Mumbai, Dated: .08.2018.
* Kishore, Sr. P.S.
MA No.173/M/2017
5 (Arising out of ITA No.1338/M/2013)
M/s. Multi Act Trade & Investments Pvt. Ltd.
Copy to: The Appellant The Respondent The CIT, Concerned, Mumbai The CIT (A) Concerned, Mumbai The DR Concerned Bench //True Copy// [ By Order Dy/Asstt. Registrar, ITAT, Mumbai.