LATE SHREE VALLABH DAMANI, v. ACIT CC 11,

MA 96/MUM/2013 | 2002-2003
Pronouncement Date: 09-10-2013 | Result: Allowed

Appeal Details

RSA Number 9619924 RSA 2013
Bench Mumbai
Appeal Number MA 96/MUM/2013
Duration Of Justice 6 month(s) 28 day(s)
Appellant LATE SHREE VALLABH DAMANI,
Respondent ACIT CC 11,
Appeal Type Miscellaneous Application
Pronouncement Date 09-10-2013
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted F
Tribunal Order Date 09-10-2013
Assessment Year 2002-2003
Appeal Filed On 12-03-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH MUMBAI BEFORE SHRI RAJENDRA SINGH ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA JUDICIAL MEMBER / M.A. NO. 96 /MUM./201 3 ( / ITA NO. 7282 /MUM./ 201 0 ) ( / ASSESSMENT YEAR : 20 0 2 03 ) / M.A. NO. 97 /MUM./201 3 ( / ITA NO. 7283 /MUM./ 2010 ) ( / ASSESSMENT YEAR : 2003 04 ) / M.A. NO. 98 /MUM./201 3 ( / ITA NO. 7284 /MUM./ 2010 ) ( / ASSESSMENT YEAR : 2005 06 ) / M.A. NO. 99 /MUM./201 3 ( / ITA NO.7285 /MUM./ 2010 ) ( / ASSESSMENT YEAR : 2006 07 ) LATE SH RREEVALLABH DAMANI THROUGH LEGAL HEIR MRS. SAROJ DAMANI 50A AMITA 7 GEN. J.B. MARG NARIMAN POINT MUMBAI 400 021 .. / APPELLANT V/S ASSTT. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 11 MUMBAI .... / RESPONDENT PERMANENT ACCOUNT NUMBER ABDP58862N / AS SESSEE BY : MR. SASHI TULSIYAN / REVENUE BY : M R . CHANDRAJIT SINGH / DATE OF HEARING 2 7 .0 9 .2013 / DATE OF ORDER 0 9.10 . 2013 LATE SHRREEVALLABH DAMANI THROUGH LEGAL HEIR MRS. SAROJ DAMANI 2 / ORDER / PER AMIT SHUKLA J. M. BY WAY OF TH E S E MISCELLANEOUS APPLICATION S THE ASSESSEE SEEKS RECALL OF THE COMMON IMPUGNED EX PARTE ORDER DATED 6 TH JULY 2012 PASSED BY THE TRIBUNAL MUMBAI BENCH IN THE APPEALS MENTIONED IN THE CAUSE TITLE ITA NO. 398 /MUM./20 12 FOR ASSESSMENT YEAR 2008 09 VIDE WHICH THE ASSESSEE IN ITS APPLICATION STATED AS UNDER: 4.1 THE APPEAL BEFORE THE HONBLE TRIBUNAL WAS FILED BY THE APPLICAN T ON 25.10.2010. THE ORDER DISPOSING OF THE APPEAL WAS RECEIVED BY THE APPLICANT ON 13.7.2012. ON RECEIPT OF THE ORDER THE LEGAL HEIR OF THE APPLICANT WAS SURPRISED SINCE AS PER HER KNOWLEDGE NO NOTICE FIXING THE DATE OF HEARING WAS EVER RECEIVED BY HER. V IDE LETTER DATED 08.08.2012 THE APPLICANT REQUESTED THE REGISTRAR OF THE ITA T TO GRANT THE INSPECTION OF THE FILE MAINTAINED WITH THE HON'BLE TRIBUNAL WHICH WAS GRANTED ON 11.09.2012. THE APPLICANT ALSO REQUESTED FOR PROVIDING A COPY OF THE ACKNOWLEDGEME NT OF SERVICE OF NOTICE BY WHICH THE HEARING OF THE CASE WAS FIXED ON 09.05.2012 WHICH WAS PROVIDED ON 08.10.2012. THE INSPECTION REVEALED AND THE SUBSEQUENT PERUSAL OF THE ACKNOWLEDGEMENT OF SERVICE OF NOTICE CONFIRMED THAT THE NOTICE FOR FIXING THE DATE OF HEARING WAS RECEIVED BY THE APPELLANT'S SERVANT MR. GANGARAM AT THE RESIDENCE ON 01.04.2012. THE DATE FIXED FOR HEARING VIDE THE ABOVE NOTICE WAS 09.05.2012 AND SINCE THE BENCH DID NOT FUNCTION ON THE SAID DATE THE HEARING WAS ADJOURNED TO 03.07.2012. T HE SERVANT MR GANGARAM HAD INADVERTENTLY FAILED TO INTIMATE THE RECEIPT OF NOTICE TO MRS. SAROJ DAMANI THE LEGAL HEIR OF SHREE VALLABH DAMANI. THUS THE NOTICE REMAINED UNRESPONDED DUE TO THE NEGLIGENCE OF THE SERVANT. THE APPEAL WAS THEREFORE DISMISSED EX - PARTE. 4.2. MRS. SAROJ DAMANI THE LEGAL HEIR OF SHREE VALLABH DAMANI CAME TO KNOW ABOUT THIS LAPSE ON THE PART OF THE SERVANT TO INTIMATE THE RECEIPT OF THE NOTICE ONLY WHEN THE ORDER DISPOSING OF THE APPEAL BY THE HON'BLE TRIBUNAL WAS RECEIVED BY H ER 13.07.2012 AND A COPY OF WHICH WAS FORWARDED TO THE A.R. 5. THE EX - PARTE ORDER PASSED BY THE HON'BLE BENCH HAS CAUSED LOT OF PREJUDICE AND HARDSHIP TO THE APPLICANT. THE MISTAKE ON THE PART OF THE SERVANT ON ENQUIRY WAS FOUND TO BE INADVERTENT AND UNI NTENTIONAL. THE APPLICANT IS THEREFORE MOVING THIS APPLICATION PRAYING FOR RE - CALL OF THE ORDER. THE APPLICANT IS HOPEFUL THAT THE HON'BLE BENCH WOULD BE KIND ENOUGH TO RE - CALL THE ORDER AND THEREBY GRANT AN OPPORTUNITY TO THE APPLICANT TO HAVE ITS APPEA L DISPOSED OFF ON MERIT. 6. IN THE LIGHT OF THE FOREGOING WE RESPECTFULLY SUBMIT THAT THERE IS NO ADVERTENT LAPSE ON THE PART OF THE APPELLANT IN NOT REPRESENTING THE CASE BEFORE THE HON'BLE I.T.A.T MUMBAI. WE WISH TO SUBMIT THAT THE APPELLANT IS VERY KEEN TO PROSECUTE THE APPEAL AND REGRET THE INCONVENIENCE CAUSED TO THE HON'BLE I.T.A.T. ON ACCOUNT OF NON - APPEARANCE. LATE SHRREEVALLABH DAMANI THROUGH LEGAL HEIR MRS. SAROJ DAMANI 3 2. T HE LEARNED COUNSEL ACCORDINGLY SUBMITTED BEFORE US THAT IN VIEW OF THE CIRCUMSTANCES EXPLAINED ABOVE THE ASSESSEE BE GRANTED ONE MO RE OPPORTUNITY OF HEARING. AN AFFIDAVIT DULY SWORN BY THE LEGAL HEIR OF LATE SHREEVALLABH DAMANI SMT. SAROJ DAMANI H ERS LF IN SUPPORT OF H ER APPLICATION IS ALSO AVAILABLE ON RECORD. THE LEARNED COUNSEL THEREFORE PRAYED THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM APPEARING BEFORE THE TRIBUNAL AND HENCE THE APPEAL BE RESTORED FOR HEARING ON MERIT. THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND DID NOT OBJECT FOR RE CALLING OF THE IMPUGNED EX PARTE ORDER. 3. AFTER HEARING THE RIVAL C ONTENTIONS AND ON THE BASIS OF MATERIAL AVAILABLE ON RECORD WE HOLD THAT THE ASSESSEE HAS DEMONSTRATED THAT HE WAS PREVENTED BY A REASONABLE CAUSE FROM APPEARING BEFORE THE TRIBUNAL ON THE DATE OF HEARING. CONSEQUENTLY IN VIEW OF THE PROVISO TO RULE - 24 O F THE INCOME TAX (APPELLATE TRIBUNAL) RULES 1963 WE RECALL THE EX PARTE ORDER DATED 6 TH JULY 2012 PASSED BY THE TRIBUNAL AND DIRECT THE REGISTRY TO FIX THE APPEAL S FOR HEARING ON 5 TH DECEMBER 2013. SINCE THIS DATE OF HEARING IS ANNOUNCED IN THE OPEN COU RT THE REQUIREMENT OF SENDING NOTICE TO THE PARTIES IS HEREBY DISPENSED WITH. 4. 4. IN THE RESULT ASSESSEES MISC. APPLICATIONS ARE TREATED AS ALLOWED. 09/10/2013 ORDER PRONOUNCED IN THE OPEN COURT ON 09/10/2013 SD/ - SD/ - RAJENDRA SINGH ACCOUNTANT MEMBER SD AMIT SHUKLA JUDICIAL MEMBER MUMBAI DATED : 09/10/2013 LATE SHRREEVALLABH DAMANI THROUGH LEGAL HEIR MRS. SAROJ DAMANI 4 / COPY OF THE ORDER FORWARDED TO : (1) / THE ASSESSEE ; (2) / THE REVENUE; (3) / THE CIT(A ) ; (4) / THE CIT MUMBAI CITY CONCERNED ; (5) / THE DR ITAT MUMBAI ; (6) / GUARD FILE . / TRUE COPY / BY O RDER / PRADEEP J. CHOWDHURY / SR. PRIVATE SECRETARY / / (DY./ASSTT. REGISTRAR) / ITAT MUMBAI