SANGITHAA GUPTA ( FORMERLY SANGEETA B GUPTA), v. DCIT CIR 8(2),

1 MA 109/M/2010 MS. SANGITHA B. GUPTA IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F BEFORE SHRI D. MANMOHAN V.P. AND SHRI P.M. JAGTAP A.M. MISC. APPLICATION NO. 109/MUM/2010 ARISING OUT OF IT(SS)A NO. 542/MUM/2003 BLOCK PERIOD 1.4.89 TO 22.2.2000 MS. SANGEETHA GUPTA (FORMERLY SANGEETA B. GUPTA) C/O MIDAS-CARE PHARMACEUTICALS PVT. LTD. PAPA INDUSTRIAL ESTATE 40 SUREN ROAD ANDHERI (E) MUMBAI - PAN AAEPG 0734H VS. DCIT CIRCLE 8(2) MUMBAI . APPLICANT RESPONDENT APPLICANT BY MS. VASANTI PATEL RESPONDENT BY SHRI SHRAVAN KUMAR ORDER PER P.M. JAGTAP A.M. BY THIS MISC. APPLICATION THE ASSESSEE IS SEEKING RECALL OF THE TRIBUNALS ORDER DATED 14.11.2007 PASSED EX PARTE IN IT(SS)A NO. 542 /MUM/03. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. AS SUBMITTED BY THE ASSESSEE IN THE PRESENT APPLICATION AND FURTHER REITERATED BY HER COUNSEL AT THE TIME OF HEARING BE FORE US HER NON-APPEARANCE AT THE TIME OF HEARING FIXED BEFORE THE TRIBUNAL ON 14.11.2007 WAS DUE TO SOME MISUNDERSTANDING OF DATE OF HEARING. IN ORDER TO SUPPORT AND SUBSTANTI ATE THIS STAND SHE HAS FILED AN AFFIDAVIT DTD. 11.01.2011 PUTTING THE ENTIRE BLAME FOR THE SO CALLED MISUNDERSTANDING ON HER C.A. MR. PADMANAND G. PATIL. THE AFFIDAVIT OF MR. PADMA NAND G. PATIL DATED 4.1.11HAS ALSO BEEN FILED BY THE ASSESSEE THE CONTENTS OF WHICH A RE REPRODUCED BELOW:- 2 MA 109/M/2010 MS. SANGITHA B. GUPTA AFFIDAVIT BEFORE THE INCOME TAX APPELLATE TRIBUNAL MUMBAI IN THE MATTER OF SANGITHA B. GUPTA ASSESSMENT YEAR : BLOCK PERIOD 1.4.1989 TO 22.2.200 0 I PADMANAND GAJANAN PATIL INDIAN INHABITANT APP EARING IN THE MATTER OF SANGITHA B. GUPTA ASSESSED TO INCOME TAX BY ORDER DATED 27 MARC H 2002 PASSED UNDER SECTION 158 BC OF THE INCOME TAX ACT. AGAINST THE ORDER DATED 27 MARCH 2 002 WE HAVE FILED AN APPEAL BEFORE THE COMMISSIONER (APPEALS) AND FURTHER BEFORE THE INCOM E TAX APPELLATE TRIBUNAL AS WE WANTED TO PURSUE THE MATTER BEFORE THE INCOME TAX APPELLATE T RIBUNAL. FURTHER I HEREBY SOLEMNLY AFFIRM AND DECLARE AS UNDER:- 1. THAT I AM FAMILIAR WITH THE FACTS OF THE CASE BASED ON THE GROUNDS OF APPEAL FILED BEFORE THE HONBLE INCOME TAX APPELLATE TRIBUNAL. 2. THAT THE NON-APPEARANCE ON 14 NOVEMBER 2007 HAS RES ULTED ON ACCOUNT OF THE UNFORTUNATE MISUNDERSTANDING OF DATE OF HEARING FIXED AT THE TI ME OF EARLIER HEARING FIXED ON 22 AUGUST 2007. I FURTHER DECLARE THAT THE ABOVE STATEMENTS ARE TR UE AND CORRECT AND TO THE BEST OF MY KNOWLEDGE AND BELIEF. PLACE: MUMBAI DATE: 4 JANUARY 2011. PADMANAND G. PATIL SD/- 3. A PERUSAL OF THE PRESENT MISC. APPLICATION FILED BY THE ASSESSEE AS WELL AS THE CONTENTS OF THE AFFIDAVIT OF SHRI PADMANAND PATEL S HOWS THAT NO SPECIFIC REASONS ARE GIVEN TO EXPLAIN HOW THE MISUNDERSTANDING ABOUT THE DATE OF HEARING FIXED ON 14.11.07 HAD ACTUALLY RESULTED/ARISEN. THE SUBMISSION MADE BY T HE ASSESSEE IN THIS REGARD IS FOUND TO BE TOO VAGUE TO ACCEPT THE SAME AS A SUFFICIENT CAU SE. IT IS NO DOUBT TRUE THAT THE APPLICATION FOR RESTORATION OF APPEAL WHICH IS DISM ISSED IN LIMINE UNDER RULE 24 OF APPELLATE TRIBUNAL RULES 1963 ON ACCOUNT OF NON-AP PEARANCE DESERVES TO BE LIBERALLY CONSTRUED WITH A VIEW TO ADVANCE JUSTICE. THE WORD S WAS PREVENTED BY HIM OF SUFFICIENT CAUSE FOR APPEARING USED IN PROVISO TO THE SAID RU LE MUST BE LIBERALLY CONSTRUED WITH A VIEW TO ADVANCE JUSTICE. IF THE PARTIES ARE UNAWAR E OF THE DATE OF HEARING AND THE NON- AWARENESS IS NOT DUE TO ANY DEFAULT OF THEIR THEN UNAWARENESS WOULD BE SUFFICIENT CAUSE WHICH WOULD PREVENT A PARTY FROM APPEARING IN THE C OURT. THE FACTS OF THE PRESENT CASE AS BORNE OUT FROM THE RECORD HOWEVER SHOW THAT THE D ATE OF HEARING WAS FIXED ON 14.11.07 3 MA 109/M/2010 MS. SANGITHA B. GUPTA AT THE ORAL REQUEST MADE ON BEHALF OF THE ASSESSEE ON THE EARLIER DATE OF HEARING FIXED ON 22.8.07 AND THE SAME WAS DULY TAKEN NOTE OF BY THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE. THE ASSESSEE THUS WAS FULLY AWARE OF THE HEARING FIXED ON 14.11.07 AND SHE HAS FAILED TO EXPLAIN AS TO HOW THERE WAS ANY MISUNDERS TANDING ABOUT THE DATE OF THE SAID HEARING. IN ORDER TO APPRECIATE WHETHER OR NOT THE RE IS A SUFFICIENT CAUSE ONE HAS TO SEE WHETHER THE DEFAULT COULD HAVE BEEN AVOIDED BY THE PARTY BY THE EXERCISE OF DUE CARE AND ATTENTION. FROM THE FACTS OF THE PRESENT CASE IT APPEARS THAT NO SUCH DUE CARE OR ATTENTION HAS BEEN EXERCISED BY THE ASSESSEE IN AS MUCH AS TH E ASSESSEE HAD NOT ONLY FAILED TO APPEAR ON THE DATE OF HEARING FIXED ON 14.11.07 DES PITE TAKING NOTE OF THE SAID DATE BUT ALSO DID NOT BOTHER TO ASCERTAIN WHAT HAPPENED TO H ER APPEAL FOR A PERIOD OF MORE THAN TWO YEARS WHEN THIS APPLICATION WAS FILED FINALLY O N 18.02.10. IN THESE CIRCUMSTANCES THE ASSESSEE CANNOT PUT THE ENTIRE BLAME ON HER CHARTER ED ACCOUNTANT TO GET AWAY WITH THE LATCHES AND NEGLIGENCE OF WHICH SHE HERSELF IS GUIL TY. THE ASSESSEE THUS HAS NOT ACTED DILIGENTLY AND HAS NOT EXERCISED DUE CARE AND ATTEN TION IN THE MATTER WHICH HAS RESULTED IN DISMISSAL OF HER APPEAL BY THE TRIBUNAL EX PARTE FO R NON-APPEARANCE. IN OUR OPINION HAVING REGARD TO ALL THESE FACTS AND CIRCUMSTANCES OF THE CASE IT CANNOT BE SAID THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM APP EARING BEFORE THE TRIBUNAL AT THE TIME OF HEARING FIXED ON 14.11.07 AND HER PRESENT APPLIC ATION FOR RESTORATION OF THE APPEAL WHICH HAS BEEN DISMISSED IN LIMINE CANNOT BE ALLOW ED. WE THEREFORE DISMISS THE SAME BEING DEVOID OF ANY MERIT. 4. IN THE RESULT THE MISC. APPLICATION IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN ON 11 TH FEBRUARY 2011. SD/- SD/- (D. MANMOHAN) (P.M. JAGTAP) VICE PRESIDENT AC COUNTANT MEMBER MUMBAI DATED 11 TH FEBRUARY 2011. RK 4 MA 109/M/2010 MS. SANGITHA B. GUPTA COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) VIII MUMBAI 4. THE CIT- VIII MUMBAI 5. THE DR BENCH F 6. MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT MUMBAI 5 MA 109/M/2010 MS. SANGITHA B. GUPTA DATE INITIALS 1 DRAFT DICTATED ON 28.1.2011 1.2.11 SR. PS 2 DRAFT PLACED BEFORE THE AUTHOR 31.1.2011 1.2.11 SR. PS 3 DRAFT PLACED BEFORE THE SECOND MEMBER 4 APPROVED DRAFT COMES TO THE SR. PS SR. PS 5 KEPT FOR PRONOUNCEMENT ON SR. PS 6 FILE SENT TO THE BENCH CLERK SR. PS 7 DATE ON WHICH FILE GOES TO THE HEAD CLERK 8 DATE ON WHICH FILE GOES TO THE AR 9 DATE OF DISPATCH OF ORDER