ILIYAS SHIPING P. LTD, v. ITO WD 5(2)(1),

MA 719/MUM/2009 | 2005-2006
Pronouncement Date: 15-01-2010 | Result: Allowed

Appeal Details

RSA Number 71919924 RSA 2009
Assessee PAN AABCI2967A
Bench Mumbai
Appeal Number MA 719/MUM/2009
Duration Of Justice 2 month(s) 16 day(s)
Appellant ILIYAS SHIPING P. LTD,
Respondent ITO WD 5(2)(1),
Appeal Type Miscellaneous Application
Pronouncement Date 15-01-2010
Appeal Filed By Department
Order Result Allowed
Bench Allotted SMC
Tribunal Order Date 15-01-2010
Assessment Year 2005-2006
Appeal Filed On 30-10-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC MUMBAI BEFORE SHRI D.K. AGARWAL (JM) AND SHRI T.R. SOOD A.M. M.A. NO. 719/MUM/2009 (ARISING OUT OF I.T.A.NO. 629/MUM/2009) ASSESSMENT YEAR : 2005-06 M/S. ILLYTAS SHIPPING PVT. LTD. 133 DAIL MAHAL CUFFE PARADE COLABA MUMBAI 400 005 PAN: AABCI 2967 A VS. THE INCOME-TAX OFFICER WARD 5(2)(1) MUMBAI. (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI T. RAVINDRA RESPONDENT BY : SHRI VIKRAM GAUR O R D E R PER T.R. SOOD AM: THROUGH THIS MISCELLANEOUS APPLICATION THE ASSESSE E HAS SOUGHT RECALLING OF THE ORDER IN I.T.A.NO. 629/M/2009 DATED 24 TH SEPTEMBER 2009 WHICH HAS BEEN DISMISSED IN LIMINE FOR WANT OF PROSECUTION ON BEHA LF OF THE ASSESSEE. IN THIS CASE AN ADJOURNMENT APPLICATION HAS BEEN FILED BUT THE S AME WAS NOT PRESSED AT THE TIME OF HEARING. THEREFORE THE SAME WAS REJECTED. 2. IT HAS BEEN POINTED OUT THAT ASSESSEE WAS NOT A WARE OF THE NOTICE BECAUSE NO NOTICE WAS SENT AND IN FACT THE SAME WAS PUT UP ON THE NOTICE BOARD. WE ARE SATISFIED THAT THE ASSESSEE HAS BEEN DEPRIVE D OF THE EFFECTIVE OPPORTUNITY OF BEING HEARD AND THEREFORE WE RECALL OUR ORDER D ATED 24 TH SEPTEMBER 2009. THE APPEAL IS FIXED FOR HEARING ON 10.03.2010 AND THE A SSESSEE SHALL TAKE NOTICE ON THIS ORDER ITSELF AND NO SEPARATE NOTICE WOULD BE GIVEN. 3. IN THE RESULT THE MISCELLANEOUS APPLICATION IS ALLOWED. ORDER PRONOUNCED ON THIS 15 TH DAY OF JANUARY 2010. SD. SD. (D.K. AGARWAL) (T. R.SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED THE 15 TH JANUARY 2010. MA NO.719/M/09 M/S. ILLYAS SHIPPING PVT. LTD. R 2 COPY TO: 1. THE ASSESSEE 2. THE REVENUE 3. THE CIT-MC-V MUMBAI 4. THE CIT(A)-V MUMBAI 5. THE DR SMC BENCH MUMBAI BY ORDER /TRUE COPY/ ASST. REGISTRAR ITAT MUMBAI MA NO.719/M/09 M/S. ILLYAS SHIPPING PVT. LTD. R 3 S .NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 15.01.2010 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 15.01.2010 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/A M 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7. FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER MA NO.719/M/09 M/S. ILLYAS SHIPPING PVT. LTD. R 4 ORDER PRONCOUNCED ON . 2. AT THE TIME OF HEARING NONE APPEARED ON BEHALF O F THE ASSESSEE- APPELLANT AS WELL AS NO PETITION FOR ADJOURNMENT WA S FILED. WE FIND FROM THE RECORDS THAT ASSESSEE-APPELLANT WAS SERVED NOTICE B Y REGISTERED POST ACKNOWLEDGEMENT DUE TWICE AND THE ACKNOWLEDG EMENT CARDS DULY SIGNED BY THE ASSESSEE ON 25.07.2007 AND 16.11.2 007 RECEIVED BACK. IT IS THEREFORE PRESUMED THAT THE ASSESSEE IS NOT INT ERESTED IN PURSUING THE APPEAL FILED BY IT. IT HAS BEEN HELD BY THE HONBLE MADHYA PRADESH HIGH COURT IN ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT (2 23 ITR 480)(MP) THAT IF THE PARTY AT WHOSE INSTANCE THE REFERENCE IS MADE FAILS TO APPEAR AT THE HEARING OR FAILS IN TAKING STEPS FOR PREPARATION OF PAPER-BOOKS SO AS TO ENABLE HEARING OF THE REFERENCE THE COURT IS NOT B OUND TO ANSWER THE REFERENCE. THE DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN CIT VS. MULTIPLAN (INDIA) PVT. LTD. 38 ITD 320 (DEL.) IS A LSO TO THE SAME EFFECT. IN THE FACTS OF THE CASE WE HOLD THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING THE PRESENT APPEAL BEFORE THE TRIBUNAL ACCORDINGLY THE APPEAL OF THE MA NO.719/M/09 M/S. ILLYAS SHIPPING PVT. LTD. R 5 ASSESSEE IS DISMISSED AS UNADMITTED. THE ASSESSEE IF SO ADVISED SHALL BE FREE TO MOVE THE TRIBUNAL PRAYING FOR RECALLING OF THIS ORDER PROVIDED THE ASSESSEE IS ABLE TO ESTABLISH THE REASONABLE CAUSE BEHIND THE NON- APPEARANCE ON THE DATE OF HEARING AND IN THAT CASE THE TRIBUNAL MAY IN ITS DISCRETION RECALL THIS ORDER AND THE APPEAL MAY BE RESTORED FOR RE-HEARING. 3. IN THE RESULT APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 18.12.2 007. 2. FROM THE GROUNDS FILED BY THE ASSESSEE BEFORE TH E LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) WE FIND THAT THE LEVY PERTA INED TO CONCEALMENT OF INCOME OF RS. 1 02 744/- AND THE PENALTY LEVIED WAS RS. 22 248/-. THEREFORE IN VIEW OF CBDT CIRCULAR F.NO. 279/MISC.142/2007-IT DATED 15 TH MAY 2008 THE APPEAL IS NOT MAINTAINABLE TAX EFFECT BEING LESS THAN RS. 2 LAKH S. VIDE PARA 4 OF THIS CIRCULAR IT IS CLEARLY MENTIONED THAT THE TAX EFFECT IN ASCERTA INING MONETARY LIMITS FOR FILING OF APPEALS IN THE CASE OF PENALTY ORDERS WOULD MEAN QUANTUM OF PENALTY DELETED OR REDUCED. 3. THEREFORE APPEAL OF THE REVENUE IS DISMISSED AS NOT MAINTAINABLE. ORDER PRONOUNCED ON THIS _______ DAY OF MAY 2009 . (G.C. GUPTA) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED THE ______MAY 2009. KN COPY TO: 6. THE ASSESSEE 7. THE ITO-26(1)(2) MUMBAI. 8. THE CIT CITY-XXVI MUMBAI 9. THE CIT(A)-XXVIII MUMBAI 10. THE DR G BENCH MUMBAI BY ORDER /TRUE COPY/ MA NO.719/M/09 M/S. ILLYAS SHIPPING PVT. LTD. R 6 ASST. REGISTRAR ITAT MUMBAI S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 18.05.09 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 18.05.09 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7. FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER MA NO.719/M/09 M/S. ILLYAS SHIPPING PVT. LTD. R 7