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Neena Variya, 602, Shree Aashirward CHS, Shankar Lane, Opp. Shankar Mandir, Kandivali (W), Mumbai-400 101 Vs. Income Tax Officer-25(3)(1), Mumbai
September, 15th 2015

                     SHRI SANJAY ARORA, AM

                           ./MA No. 28/Mum/2015
                      (Arising out of ITA No. 4328/Mum/2012)
                   (   / Assessment Years: 2008-09)

Neena Variya,                                      Income Tax Officer-25(3)(1),
602, Shree Aashirward CHS,                         Mumbai
Shankar Lane, Opp. Shankar Mandir,
Kandivali (W), Mumbai-400 101             Vs.

     . /  . /PAN/GIR No. AAJPU 6475 A
   (Applicant)     :           (Respondent)

                        Applicant by         :    Shri N. M. Porwal
                       Respondent by         :    Shri Aarsi Prasad

                                             :    11.09.2015
                 Date of Hearing
                                             :    11.09.2015
          Date of Pronouncement

                                    / O R D E R
Per Sanjay Arora, A. M.:

      This is a Miscellaneous Petition by the Assessee u/s. 254(2) of the Income Tax
Act, 1961 (`the Act' hereinafter) r/w Rule 24 of the Income Tax (Appellate Tribunal)
Rules, 1963 qua an appellate order dated 25.07.2013 passed by the Tribunal
u/s.254(1) of the Act, disposing its captioned appeal.
                                               MA No. MA No. 28/Mum/2015 (A.Y. 2008-09)
                                                                    Neena Variya vs. ITO

2.     The tribunal had dismissed the assessee's appeal in limine on the ground of
non-prosecution, drawing support from the decisions in the case of CIT vs. B. N.
Bhattachargee & Others [1979] 118 ITR 461 (Cal) and CIT vs. Multiplan India (P)
Ltd. [1991] 38 ITD 320 (Del). The assessee has now moved an application, stating
that the non-appearance by the ld. counsel, Shri N. M. Porwal, the ld. Authorized
Representative (AR) before us, on the date of hearing, was on account of his being out
of station on a pre-scheduled visit. Further, though he was to return back on the
morning of 25.07.2013, i.e., the date of hearing, itself, he could, due to unforeseen
circumstances, return only on 26.07.2013, resulting in non-attendance during hearing.
No adjournment motion had been made as he intended to attend the hearing. An
Affidavit dated 16.01.2015 by the said counsel, averring the same, stands also
enclosed. Further, relying on the decision in the case of, among others, CIT vs. S.
Chenniappa Mudaliar [1969] 74 ITR 41 (SC), it is sought to be canvassed that the
tribunal could not have dismissed the appeal in the manner done in-as-much as it is
obliged to decide the same on merits, i.e., even granting the hearing of the appeal ex
parte for the default of the appellant.

3.     We have heard the parties, and perused the material on record, with the ld.
Departmental Representative (DR) also not refuting the contents of the affidavit, filed
along with the instant application. We are, under the circumstances, satisfied that the
default of non-appearance by the ld. counsel on the date of hearing of the appeal was
for good and sufficient reasons, and that the in limine dismissal of its appeal had
caused prejudice to the assessee. We, accordingly, in exercise of the power u/s.
254(2), relying on the decision by the Hon'ble Apex Court in S. Chenniappa
Mudaliar (supra), direct restitution of the assessee's appeal for a decision on merits
after allowing a reasonable opportunity of being heard to the parties. The Registry is
hereby directed to post the case for the same in due course. We decide accordingly.
                                               MA No. MA No. 28/Mum/2015 (A.Y. 2008-09)
                                                                    Neena Variya vs. ITO

4.    In the result, the assessee's Miscellaneous Application is allowed.

 Order pronounced in the open court on September 11, 2015 at the conclusion of the

               Sd/-                                    Sd/-
     (Shailendra Kumar Yadav)                      (Sanjay Arora)
         / Judicial Member                           / Accountant Member
 Mumbai;  Dated : 11.09.2015
. ../Roshani, Sr. PS
        /Copy of the Order forwarded to :
1.  / The Applicant
2.      / The Respondent
3.     () / The CIT(A)
4.      / CIT - concerned
5.                ,     ,   / DR, ITAT, Mumbai
6.     / Guard File
                                                  / BY ORDER,

                                         /  (Dy./Asstt. Registrar)
                                 ,   / ITAT, Mumbai
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