IN INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE SHRI JASON P. BOAZ, AM AND SHRI SANDEEP GOSAIN, JM M.A. No. 67/Mum/2016 (In ITA No.7526/Mum/2012) (Assessment Year: 2008-09) M/s PMT Machines Limited. DCIT 2(2), 214, Linkway Estate, Aayakar Bhavan, New Link Road, Malad (W), Vs. Mumbai-400 020. Mumbai-400 064.PAN/GIR No. AAACP 4680L (Appellant) : (Respondent) Appellant by : Shri Ashok Patil Respondent by : Shri N. Padmanaban : 26/08/2016 Date of Hearing : 16/09/2016 Date of Pronouncement ORDER Per Sandeep Gosain, Judicial Member: Present Miscellaneous Application has been moved by assessee u/s 254(2) of Income Tax Act for restoring ex parte appeal bearing ITA No.7526/Mum/2012 and providing opportunity of hearing to assessee. 2. brief facts of case are that assessee preferred appeal against order dated 03.10.2012 passed by CIT(A)-5, Mumbai. said appeal was listed for 2 MA No. 67/Mum/2016(A.Y. 2008-09) M/s. PMT Machines Ltd vs. DCIT hearing on 27.01.2016 but none appeared on behalf of assessee therefore tribunal after calling appeal several times and considering that none appeared on behalf of assessee had decided to dispose off appeal on merits and therefore vide order dated 03.02.2016 appeal of assessee was decided ex parte against assessee. 3. Aggrieved by said ex-parte order, assessee had filed present application u/s 254(2) of Act on grounds that assessee had engaged Mr. Askok J. Patil, advocate to represent assessee in above appeal. It was submitted that said advocate by error had made mistake in noting next date of hearing as 25.01.2016 instead of 27.01.2016, when benches of tribunal were not functioning. It was further submitted that Mr. Patil also as matter of routine practice checks regular cause list, but he could not notice matter listed on 27-01-2016, as there was mistake in cause list, as name of assessee was mentioned as PMT Watches instead of PMT Machines Limited and moreover there was mistake in appeal no. which was mentioned as 7526/Mum/2010 instead of 7526/Mum/2012, therefore, because of these reasons said advocate could not appear before tribunal when case was called out. ld. AR had also drawn our attention to detail affidavit of Mr. Ashok Patil in support of present application. 3 MA No. 67/Mum/2016(A.Y. 2008-09) M/s. PMT Machi nes Ltd vs. DCIT 4. After hearing counsel for both parties and perusal of material placed on record. We have noted that at page no.11, photocopy of cause list of 25.01.2016 has been annexed by assessee and in said cause list there was no case fixed on 25.01.2016. However in cause list of 27/01/2016 at serial no.1 PMT Watches Limited bearing ITA No.7526/Mum/2010 has been mentioned in cause list. number of appeal and word PMT is correctly mentioned in cause list therefore ground set up by assessee that advocate could not appeared before bench on 27.01.2016 because of afore mentioned typographical error is not sustainable and even otherwise since no case was not listed on 25.01.2016 as allegedly noted by assessee. Hence in such circumstances it was bounded duty of counsel or assessee to find out their case or to make appropriate application for tracing next date of hearing of their case. But in this case assessee or his counsel has not acted with due diligence. Nevertheless principles of natural justice demands that lis between parties should be decided on merits after providing due opportunity of hearing to both parties. Although in present case full opportunity of hearing to both parties was given but still assessee has not appeared and has now raised plea that because of reasons stated in application assessee or his advocate could not appear and there was no malafide intention on part of assessee or his advocate. 4 MA No. 67/Mum/2016(A.Y. 2008-09) M/s. PMT Machi nes Ltd vs. DCIT 5. Considering facts and circumstances of present case, we are of considered view that ends of justice would be met only when we provide one more opportunity of hearing to assessee for contesting its case on merits therefore we set aside ex-parte order dated 03.02.2016 and restore appeal for hearing on merits. Therefore keeping in view our above discussion, we allow Miscellaneous Application and while setting aside ex-parte order, we restore appeal to be heard on merits. 6. In result, Miscellaneous Application filed by assessee stands allowed. Order pronounced in open court on 16th September, 2016 Sd/- Sd/- (Jason P. Boaz) (Sandeep Gosain) Accountant Member Judicial Member Mumbai; Dated :16.09.2016 Ps. Ashwini 5 MA No. 67/Mum/2016(A.Y. 2008-09) M/s. PMT Machines Ltd vs. DCIT Copy of Order forwarded to : 1. Appellant 2. Respondent 3. CIT(A) 4. CIT - concerned 5. DR, ITAT, Mumbai 6. Guard File BY ORDER, (Dy./Asstt. Registrar) ITAT, Mumbai M/s PMT Machines Limited v. DCIT 2(2), Mumbai