TMI Blog2012 (10) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... 009 along with a notice of motion for condonation of delay. It was contended that in view thereof, this writ petition is not maintainable is not agreeable. This writ petition is comprehensive and challenges all the impugned orders. In order to obtain complete relief the petitioner cannot be faulted for having filed this writ petition. The petitioner has been put to considerable expenses and effort merely to obtain a hearing on merits. The petitioner can, by no stretch of imagination be said to have waived its rights. This is clear from the fact that the petitioner has duly and diligently prosecuted the appeals in respect of the three other assessment years. But for the unfortunate circumstances fourth appeal would also have been heard on merits in the normal course. The petitioner is not entirely at fault for the delay and negligence in prosecuting the fourth appeal - The Tribunal is directed to hear the petitioner's appeal on merits - in favour of assessee. - Writ Petition No. 1379 of 2012 - - - Dated:- 10-9-2012 - S.J. Vazifdar and M.S. Sanklecha, JJ J.D. Mistri, Senior Counsel with Atul K. Jasan for the Appellant P.C. Chhotaray for the Respondent JUDGEMENT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... total income of Rs.7,71,120/- after claiming a deduction under section 80P. The case was reopened under section 147 on the ground that the petitioner had collected an amount of Rs.22,67,600/- from nonmembers as contribution towards transfer fees. It was contended that the same having been received by the society from the incoming members was taxable in the hands of the petitioner. It was further contended that the petitioner had collected non-occupancy charges in excess of 10% and was therefore, taxable. The amounts shown by the petitioner as income from house property, was treated as income from other sources. Accordingly, proceedings under section 147 were initiated. 4(A). The assessment was completed under section 143(3) on 31.10.2006 determining the total income of Rs.42,38,329/- by making additions on the above basis. (B). On 26.12.2006, the petitioner filed an appeal before the Commissioner of Income Tax (Appeals), who by an order dated 12.10.2007 confirmed the additions. 5. The orders impugned in this writ petition pertain to the alleged lapses and negligence on the petitioner's part in prosecuting the challenge to the order of the CIT (A) dated 12.10.2007. We are of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid the appeal fees within a week i.e. on 31.1.2008 and completed the remaining formalities on 10.2.2008. 9. On 23.7.2009, four appeals filed by the petitioner were placed before the Tribunal in respect of the different assessment years. Three of them were adjourned to the following date i.e. 24.7.2009 to correct technical errors. The Tribunal however held the appeal pertaining to the assessment year in question viz. 2004-2005, to be barred by limitation. The Tribunal observed that a defect memo had been issued which required the petitioner to rectify the defects within ten days, which it had failed to do. The Tribunal therefore, dismissed the appeal "as unadmitted" being barred by limitation. 10. It is pertinent to note that an advocate had appeared on behalf of the petitioner in all four appeals. Three of these appeals were adjourned to enable him to rectify certain defects in the power of attorney entitling him to represent the petitioner before the Tribunal. It appears that for some reason, the petitioner had failed to furnish a power of attorney for the assessment year in question - 2004-2005. The Tribunal therefore, rejected an application to have the matter adjourned ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is no warrant for denying the petitioner such relief due to the alleged negligence. 13. On 24.3.2010, the petitioner filed a Miscellaneous Application before the Tribunal for setting aside the order dated 23.7.2009 and for restoration of the appeal. The same was dismissed by an order of the Tribunal dated 14.5.2010 for default. The petitioner remained unrepresented. The order however, was passed on merits. The Tribunal recorded that it had perused the record. 14. For the reasons already stated, we are unable to agree. The Miscellaneous Application sets out the facts which in our view constitute sufficient grounds for recalling the order dated 23.7.2009. Even assuming that this order correctly held that allowing the Miscellaneous Application would amount to a review, this Court is not precluded from exercising its writ jurisdiction to consider the same. 15. In the circumstances, the second impugned order dated 14.5.2010 is liable to be set-aside. 16. On 23.3.2011, the petitioner filed a further Miscellaneous Application explaining the reasons for not having appeared on 14.5.2010 when the second impugned order was passed. It was stated that the petitioner had not received ..... X X X X Extracts X X X X X X X X Extracts X X X X
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