DEVANG L. SHAH, v. UITO WD 18(2)(1),

MA 759/MUM/2009 | 2004-2005
Pronouncement Date: 18-01-2010 | Result: Partly Allowed

Appeal Details

RSA Number 75919924 RSA 2009
Bench Mumbai
Appeal Number MA 759/MUM/2009
Duration Of Justice 2 month(s)
Appellant DEVANG L. SHAH,
Respondent UITO WD 18(2)(1),
Appeal Type Miscellaneous Application
Pronouncement Date 18-01-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted D
Tribunal Order Date 18-01-2010
Assessment Year 2004-2005
Appeal Filed On 17-11-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D : MUMBAI BEFORE SHRI D. MANMOHAN HONBLE VICE PRESIDENT AND SHRI R.K.PANDA ACCOUNTANT MEMBER M.A. NO. 759/MUM/2009 ARISING OUT OF ITA. NO.6467/MUM/2008 - ASSESSMENT YEAR 2004-2005 DEVANG L. SHAH MUMBAI 400 051 PAN AAMPS-4024-Q VS. I.T.O. 18 (2) (4) MUMBAI. (APPLICANT) (RESPONDENT) FOR APPLICANT : SHRI SATISH R. MODY FOR RESPONDENT : MRS. VANDANA SAGAR (D.R.) ORDER PER SHRI D. MANMOHAN V.P. BY THIS APPLICATION THE ASSESSEE SEEKS RECALL OF THE EXPARTE ORDER DATED 17 TH SEPTEMBER 2009 PASSED BY THE ITAT D BENCH MUMBAI. THE APPEAL WAS FIXED FOR HEARING ON 15-9-20 09 ON WHICH DATE THE REPRESENTATIVE OF THE ASSESSEE FILED LETTER STA TING THAT THE PROPRIETOR MR. DEVANG LALJI SHAH IS OUT OF INDIA AND THUS REQ UESTED FOR POSTING THE CASE BY GIVING A FRESH DATE OF HEARING. 2. HOWEVER THE LEARNED D.R. SUBMITTED THAT THE IS SUE IS COVERED BY THE DECISION OF THE APEX COURT IN THE CA SE OF LIBERTY INDIA LIMITED (UNREPORTED ORDER DATED 02-09-2009) AND ALS O STATED THAT THE ASSESSEE IS A HABITUAL DEFAULTER. 3. UNDER THESE CIRCUMSTANCES WE PROCEEDED TO DISP OSE OF THE APPEAL EXPARTE QUA THE ASSESSEE AND BY FOLLOWING T HE DECISION OF THE APEX COURT IN THE CASE OF LIBERTY INDIA LIMITED GRO UND NO.2 OF THE ASSESSEE WAS REJECTED. 2 4. AS REGARDS GROUND NO. 1 THE TRIBUNAL OBSERVED IN PARA 6 OF THE ORDER AS UNDER : 6. THERE IS NOTHING ON RECORD TO SUGGEST THAT THE ASSESSEE FULFILLED THE CONDITIONS REQUIRED UNDER SECTION 80IB (2) OF THE ACT SO AS TO BE ELIGIBLE FO R DEDUCTION. 5. LEARNED COUNSEL SUBMITS THAT THE ASSESSEE IS IN TERESTED IN PURSUING THE APPEAL BUT COULD NOT APPEAR ON THE DAT E FIXED FOR HEARING (FIRST POSTING) UNDER COMPULSIVE CIRCUMSTANCES BEI NG OUT OF INDIA FOR BUSINESS PURPOSE. IT WAS ALSO CONTENDED THAT THE AS SESSEE WAS REGULARLY PURSUING THE MATTERS BEFORE THE APPELLATE TRIBUNAL AND IN PROOF THEREOF ORDERS PASSED BY THE ITAT IN ASSESSEES OWN CASE FO R THE ASSESSMENT YEARS 2001-2002 AND 2003-2004 (ITA.NOS. 1884/MUM/20 05 AND 197/MUM/2007) WERE PLACED BEFORE US. IT WAS FURTHER CONTENDED THAT IDENTICAL ISSUE WAS SET ASIDE BY THE ITAT IN THE EA RLIER YEARS. THUS THE EXPARTE ORDER RESULTED IN VIOLATION OF PRINCIPLES O F NATURAL JUSTICE AND THERE WAS SUFFICIENT CAUSE FOR NON-APPEARANCE ON TH E DATE FIXED FOR HEARING. LEARNED COUNSEL HAS NOT SERIOUSLY OBJECTED TO THE DECISION OF THE ITAT IN RESPECT OF THE SECOND ISSUE SINCE IT IS COVERED BY THE DECISION OF THE HONBLE APEX COURT MENTIONED ABOVE. 6. ON THE OTHER HAND LEARNED D.R. SUBMITTED THAT THE DECISION WAS RENDERED BY THE BENCH ON MERITS AND HENCE RECA LLING AN ORDER PASSED ON MERITS WOULD AMOUNT TO REVIEW. THUS SHE SUPPORTED THE ORDER PASSED BY THE ITAT. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE RECORD. AS REGARDS GROUND NO.2 LEARNED COUNSEL ADMI TTED THAT THE ISSUE STANDS COVERED BY THE DECISION OF THE APEX COURT AN D HENCE THERE IS NO 3 NEED TO RECALL THE ORDER VIS--VIS GROUND NO.2 SI NCE THERE IS NO MISTAKE APPARENT FROM RECORD IN DISPOSING THE SAID GROUND. 8. IN SO FAR AS THE FIRST ISSUE IS CONCERNED ADMI TTEDLY EARLIER ORDERS WERE NOT PLACED ON RECORD AT THE TIME OF HEA RING. ON A CONSPECTUS OF THE MATTER WE ARE OF THE VIEW THAT IN THE INTER EST OF SUBSTANTIAL JUSTICE AND IN EXERCISE OF THE POWERS VESTED IN US UNDER RU LE 24 OF THE I.T. RULES WE HEREBY RECALL THE ORDER DATED 17-9-2009 F OR THE LIMITED PURPOSE OF DISPOSING OF GROUND NO.1. WE DIRECT THE REGISTRY TO POST THE APPEAL FOR FRESH HEARING ON 5-4-2010 VIS--VIS GRO UND NO.1. 9. IN THE RESULT MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS THE 1 8 TH DAY OF JANUARY 2010 SD/- SD/- (R.K.PANDA) (D.MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI DATE 18 TH JANUARY 2010. VBP/- COPY TO 1. SHRI DEVANG LALJI SHAH M/S. WAMA INTERNATIONAL 315 KEWAL INDUSTRIAL ESTATE T.P. ROAD LOWER PAREL MUMB AI 013 PAN AAMPS-4024-Q 2. I.T.O. 18 (2) (1) MUMBAI. 4. CIT(A)-XVIII MUMBAI 5. CIT MUMBAI CITY-XVIII MUMBAI 6. D.R. D BENCH MUMBAI. 7. GUARD FILE. (TRUE COPY) BY ORDER ASST. REGISTRAR ITAT MUMBAI BENCHES MUMBAI. 4 SNO DATE INITIALS 1 DRAFT DICTATED ON 15-01-2010 SR.P.S 2. DRAFT PLACED BEFORE AUTHOR 15-01-2010 SR.P.S 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER V.P. 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER A.M 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.P.S 6. KEPT FOR PRONOUNCEMENT ON SR.P.S 7. FILE SENT TO THE BENCH CLERK SR.P.S 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER