If there is sufficient cause for non appearance than the ex-party order can be recalled

IN THE INCOME TAX APPELLATE TRIBUNAL

MUMBAI BENCHES, ‘D’, MUMBAI

BEFORE S/SHRI DINESH KUMAR AGARWAL, JM

AND N.K. BILLAIYA, AM

M.A. No. 107/Mum/2012

Arising out of ITA No. 2458/Mum/2011

(Assessment Year 2007-08)

Shri Dhananjay G. Mishra,

Prop. M.S. Yeoman Marine

Services,

29, Neelgiri Indl. Estate,

T.J. Road, Sewri (W),

Mumbai – 400 015.

PAN: AFLPM 1475K

Applicant

V/s

Asst. Commissioner of Income-Tax 24(1),

C-13, BKC, Bandra,

Mumbai 400 051.

Respondent

Date of Hearing: 03-08-2012

Date of Pronouncement: 03-08-2012

Applicant by: Shri Satish R. Mody

Respondent by: Shri Rajarshi Dwivedi

O R D E R

PER DINESH KUMAR AGARWAL (JM)

This Misc. Application filed by the assessee for the A.Y. 2007-08 is directed against the order passed by the Tribunal in ITA No. 2458/Mum/2011 dtd. 19-1-2012.

2. The applicant in the Misc. Application dtd. 14-2-2012 supported by Affidavit of Shri Chaitanya C. Dalal, stated in para 5 & 6 of the Affidavit as under:-

“5. I state that I inadvertently did not notice that the date of hearing of the said appeal was also mentioned on the said Acknowledgment – Cum-Receipt.

6. I state that I was under the bonafide belief that the Hon’ble Tribunal will issue a notice of hearing for the said appeal filed.”

It was, therefore, submitted that the ex-parte order passed by the Tribunal be recalled.

3. At the time of hearing, the ld. counsel for the assessee submits that for the reasons as mentioned in assessee’s Misc. Application supported by affidavit, the ex-parte order passed by the Tribunal be recalled, which was not seriously objected to by the ld. D.R.

4. We have carefully considered the submissions of the rival parties and perused the material available on record. After having satisfied about the reasons submitted by the assessee and considering the facts and circumstances of the case, we are of the view that there was sufficient cause for non-appearance of the assessee or his authorized representative on the date of hearing and accordingly the ex-parte order dtd. 19-1-2012 passed by the Tribunal is recalled. Parties are to appear without waiting for any notice on 04-10-2012. Accordingly the Misc. Application filed by the assessee is allowed.

5. In the result, the Misc. Application filed by the assessee is allowed.

Order pronounced in the open court on 3rd August, 2012.

                                                  Sd/ -                                     Sd/ -

                               (N.K. BILLAIYA)       (DINESH KUMAR AGARWAL)

                            ACCOUNTANT MEMBER      JUDICIAL MEMBER

Mumbai, Dated 3rd August, 2012.

RK.

Copy to:

1. Appellant

2. Respondent

3. CIT , Concerned, Mumbai

4. CIT(A) – Concerned, Mumbai

5. DR “D’ Bench

6. Guard file.

BY ORDER

ASSTT. REGISTRAR,

ITAT, MUMBAI