Shri Thakorbhai M.Patel, Surat V. The Dy.CIT.,Circle-6, Surat

CO 107/AHD/2012

• Counselvise Citation: [2016] 123 COUNSELVISE.COM (IT) 2010 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 29 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 12-02-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 13-01-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 13-06-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DEEPAK SUTARIA
• Keywords: Opportunity of being heard

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI SHAILENDRA K. YADAV, JUDICIAL MEMBER AN D SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER ./ ITA NO. 887/AHD/2012 & CO NO.107/AHD/2012 / ASSESSMENT YEAR: 2008-09 THE DY. COMMISSIONER OF INCOME-TAX, CIRCLE-6, SURAT .. APPELLANT VS SHRI THAKORBHAI M. PATEL, 121, SAI RACHNA ROW HOUSE, NR. L.P. SAVANI SCHOOL, NR. PETROL PUMP, ADAJAN, SURAT .. RESPONDENT / PAN : AAFPP 7101 G CROSS-OBJECTOR REVENUE BY : SHRI DEEPAK SUTARIA, SR. DR. ASSESSEE(S) BY : NONE / DATE OF HEARING 13/01/2016 /DATE OF PRONOUNCEMENT 12/02/2016 / O R D E R PER SHAILENDRA K. YADAV, JUDICIAL MEMBER: THIS APPEAL FILED BY THE REVENUE AND THE CROSS-OBJE CTION THEREOF FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV , SURAT DATED 31.01.2012 FOR ASSESSMENT YEAR 2008-09. 2. THE NOTICE OF HEARING WAS SENT TO THE ASSESSEE T HROUGH THE DEPARTMENTAL REPRESENTATIVE FOR EFFECTIVE SERVICE O N THE RESPONDENT-ASSESSEE. HOWEVER, ON THE DATE OF HEARIN G NO ITA NO.887/AHD/2012 & CO 107/AHD 2012 ASSESSEE - SHRI THAKORBHAI M. PATEL AY 2008-09 2 INTIMATION WAS GIVEN BY THE LEARNED DEPARTMENTAL REPRESENTATIVE WHETHER SERVICE OF THE NOTICE HAD BE EN EFFECTED ON THE ASSESSEE OR NOT. LAST SUCH NOTICE OF HEARIN G FIXING THE DATE OF HEARING AS 13.01.2016 WAS HANDED OVER TO TH E DEPARTMENTAL REPRESENTATIVE WELL IN ADVANCE OF THE DATE OF HEARING. HOWEVER WHEN THE APPEAL WAS CALLED ON FOR HEARING, NONE PUT IN AN APPEARANCE ON BEHALF OF THE RESPONDE NT- ASSESSEE. SHRI DEEPAK SUTARIA, THE LEARNED DEPARTM ENTAL REPRESENTATIVE WHO WAS PRESENT ON BEHALF OF THE REV ENUE WHEN ASKED ABOUT THE SERVICE ON THE RESPONDENT-ASSESSEE, WAS UNABLE TO SAY WHETHER SERVICE HAD BEEN EFFECTED OR NOT. DEPARTMENT HAS SHOWN TOTAL APATHY IN THE MATTER OF SERVICE OF NOTICES OF HEARING. ACCORDINGLY THE APPEAL OF THE REVENUE COULD NOT BE HEARD ON MERIT IN ABSENCE OF PROPER SERVICE OF NOTICE UPON ASSESSEE. IT SHOWS THAT REVENUE HAS NOT PROVI DED PROPER ADDRESS OF THE ASSESSEE. OPPORTUNITY OF HEARING IS ESSENTIAL BEFORE ADJUDICATING APPEAL FOR WHICH SERVICE OF NOT ICE IS A CONDITION PRECEDENT. UNDER SECTION 254(1) THE TRIB UNAL IS REQUIRED TO GIVE BOTH THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD. WHAT IS ENGRAINED IN SECTION 254(1) IS NOT AN EMPTY FORMALITY BUT A VALUABLE RIGHT AVAILABLE TO T HE PARTIES IN APPEAL BEFORE THE TRIBUNAL. SINCE IN THE INSTANT CA SE NOTICE OF HEARING COULD NOT BE EFFECTED ON THE RESPONDENT-ASS ESSEE AT THE ADDRESS GIVEN BY THE REVENUE IN THE MEMORANDUM OF A PPEAL, AND THE DEPARTMENTAL REPRESENTATIVE HAS NOT GOT THE NOTICE SERVED IN SPITE OF SUFFICIENT OPPORTUNITY, IT HAS NOT BEEN POSSIBLE TO CONDUCT THE ADJUDICATION PROCEEDINGS AS PER THE REQUIREMENTS OF SECTION 254(1). WHEN THE BENCH CONF RONTED THE ITA NO.887/AHD/2012 & CO 107/AHD 2012 ASSESSEE - SHRI THAKORBHAI M. PATEL AY 2008-09 3 LEARNED DEPARTMENTAL REPRESENTATIVE AS TO WHY THE R EVENUE'S APPEAL MAY NOT BE DISMISSED FOR APATHY IN SERVICE O F NOTICE ON THE RESPONDENT-ASSESSEE, THE LEARNED DEPARTMENTAL REPRESENTATIVE HAD NO ANSWER. 3. IN AN APPEAL FILED BY THE REVENUE EXPEDITIOUS DI SPOSAL OF THE TAX DISPUTE WOULD NECESSARILY BE IN THE BEST IN TEREST OF THE REVENUE FOR WHICH CORRECT ADDRESS OF ASSESSEE IS NE CESSARY, SO THAT MATTER MAY BE DECIDED AFTER PROVIDING OPPORTUN ITY OF HEARING. 4. APART FROM THE ABOVE, WE FEEL THAT IT HAS BEEN T HE ESTABLISHED PRACTICE AND ACCEPTED PROCEDURE THAT IN CASE NOTICES OF HEARING CANNOT BE SERVED ON THE RESPONDE NT ASSESSEE IN REVENUE'S APPEAL, SUCH NOTICE HAS GOT SERVED THR OUGH INCOME-TAX AUTHORITIES. SUCH PRACTICE AND PROCEDUR E HAS BEEN LONG ESTABLISHED AND FOLLOWED IN THE INTEREST OF EX PEDITIOUS ADJUDICATION OF TAX DISPUTES. 5. APART FROM THE CONSIDERATION OF EXPEDIENCY AND E QUITY AS REFERRED HEREIN ABOVE, WE ARE OF THE CONSIDERED VIE W THAT THE PRACTICE OF GETTING THE SERVICE EFFECTED ON THE RES PONDENT- ASSESSEE IN A REVENUE'S APPEAL WHEREIN NOTICE OF HE ARING COULD NOT BE SERVED ON THE ASSESSEE BY POST IS FULLY IN C ONFORMITY WITH THE JUDICIAL POWERS AND JURISDICTION OF THE TRIBUNA L AND DOES NOT IN ANY MANNER RUN CONTRARY TO ANY PROVISIONS OF THE STATUTE. POWERS CONFERRED BY AN ENABLING STATUTE I NCLUDE NOT ONLY SUCH AS ARE EXPRESSLY GRANTED BUT ALSO, BY IMP LICATION, ALL POWERS WHICH ARE REASONABLY NECESSARY FOR THE ACCOM PLISHMENT ITA NO.887/AHD/2012 & CO 107/AHD 2012 ASSESSEE - SHRI THAKORBHAI M. PATEL AY 2008-09 4 OF THE OBJECT INTENDED TO BE SECURED. THE DOCTRINE OF INCIDENTAL OR IMPLIED POWERS OF THE APPELLATE AUTHORITY HAVE B EEN ENUNCIATED AND ENDORSED BY THE HON'BLE SUPREME COUR T IN THE CASE OF ITO V. M.K. MOHAMMED KUNHI [1969] 71 ITR 81 5. IT IS A WELL ESTABLISHED RULE OF LEGAL JURISPRUDENCE THAT W HERE AN ACT CONFERS A JURISDICTION, IT IMPLIEDLY GRANTS THE POW ERS OF DOING ALL SUCH ACTS, OR EMPLOYING SUCH MEANS, AS ARE ESSENTIA LLY NECESSARY TO ITS EXECUTION. 6. IT IS WELL SETTLED THAT WHERE A SUBSTANTIVE POWE R IS CONFERRED UPON A COURT OR TRIBUNAL, ALL INCIDENTAL AND ANCILLARY POWERS NECESSARY FOR AN EFFECTIVE EXERCISE OF THE S UBSTANTIVE POWER HAVE TO BE INFERRED - CHIEF EXECUTIVE OFFICER AND VICE- CHAIRMAN, GUJARAT MARITIME BOARD V. HAJI DAUD HAJI HARUN ABU [1996] 11 SCC 23. 7. IN THE CONTEXT OF THE JURISDICTION AND POWERS OF THE CUSTOMS, EXCISE AND GOLD (CONTROL) APPELLATE TRIBUN AL, THE SUPREME COURT HAS, IN UNION OF INDIA V. PARAS LAMIN ATES (P.) LTD. [1990] 186 ITR 722, 726, OBSERVED: THERE IS NO DOUBT THAT THE TRIBUNAL FUNCTIONS AS A COURT WITHIN THE LIMITS OF ITS JURISDICTION. IT HAS ALL T HE POWERS CONFERRED EXPRESSLY BY THE STATUTE. FURTHERMORE, BEI NG A JUDICIAL BODY, IT HAS ALL THOSE INCIDENTAL AND ANCI LLARY POWERS WHICH ARE NECESSARY TO MAKE FULLY EFFECTIVE THE EXP RESS GRANT OF STATUTORY POWERS. CERTAIN POWERS ARE RECOGNIZED AS INCIDENTAL AND ANCILLARY, NOT BECAUSE THEY ARE INHE RENT IN THE TRIBUNAL, OR BECAUSE ITS JURISDICTION IS PLENARY, B UT BECAUSE IT IS THE LEGISLATIVE INTENT THAT THE POWER WHICH I S EXPRESSLY GRANTED IN THE ASSIGNED FIELD OF JURISDICTION IS EF FICACIOUSLY AND MEANINGFULLY EXERCISED. THE POWERS OF THE TRIBU NAL ARE ITA NO.887/AHD/2012 & CO 107/AHD 2012 ASSESSEE - SHRI THAKORBHAI M. PATEL AY 2008-09 5 NO DOUBT LIMITED. ITS AREA OF JURISDICTION IS CLEAR LY DEFINED BUT, WITHIN THE BOUNDS OF ITS JURISDICTION, IT HAS ALL THE POWERS EXPRESSLY AND IMPLIEDLY GRANTED. THE IMPLIED GRANT IS, OF COURSE, LIMITED BY THE EXPRESS GRANT AND, THEREF ORE, IT CAN ONLY BE OF SUCH POWER AS ARE TRULY INCIDENTAL AND A NCILLARY FOR DOING ALL SUCH ACTS OR EMPLOYING ALL SUCH MEANS AS ARE REASONABLY NECESSARY TO MAKE THE GRANT EFFECTIVE. 8. REFERENCE MAY FURTHER BE MADE TO THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF PARAS LAMINATES (P.) L TD.'S CASE (SUPRA) WHEREIN A SIMILAR PROPOSITION HAS BEEN ENUN CIATED BY THE APEX COURT AND IT HAS BEEN HELD THAT THE TRIBUN AL IS ENTITLED TO EXERCISE ALL INCIDENTAL AND ANCILLARY P OWERS WHICH ARE REASONABLY NECESSARY FOR PERFORMING THE ADJUDIC ATIVE FUNCTIONS. APPLYING THE AFORESAID PRINCIPLES, IT CL EARLY FOLLOWS THAT IT WAS OBLIGATORY ON THE PART OF THE INCOME-TA X AUTHORITY TO EFFECT SERVICE OF NOTICE OF HEARING ON THE ASSESSEE SINCE THE SERVICE COULD NOT BE EFFECTED BY POST AT THE ADDRES S GIVEN BY THE REVENUE IN THE MEMORANDUM OF APPEAL. THE TRIBUNAL WAS THEREFORE WELL WITHIN ITS POWERS TO DIRECT THE INCO ME-TAX DEPARTMENT TO EFFECT SERVICE ON THE ASSESSEE PARTIC ULARLY SINCE THE DEPARTMENT, AS AN EXECUTIVE ORGANIZATION IS WEL L EQUIPPED WITH THE REQUISITE STAFF STRENGTH OF NOTICE SERVER, INCOME-TAX INSPECTOR ETC. FOR THE PURPOSE OF SERVING VARIOUS S TATUTORY NOTICES ON THE TAX PAYER. SINCE THE REVENUE HAS SHO WN APATHY WITH REGARD FOR SERVING THE NOTICES OF HEARING ON T HE RESPONDENT ASSESSEE REVENUE HAS ALSO NOT MADE ANY REQUEST TO G ET THE NOTICE SERVED BY ALTERNATE WAY I.E., BY WAY OF PUBLICATION ETC. WHICH IS LAID DOWN IN RULE 20 OF CPC. TRIBUNAL CAN TAKE HELP ON PROCEDURAL ASPECT AS LAID DOWN UNDER RELEVANT PROVI SIONS OF THE ITA NO.887/AHD/2012 & CO 107/AHD 2012 ASSESSEE - SHRI THAKORBHAI M. PATEL AY 2008-09 6 CIVIL PROCEDURE CODE WHERE INCOME-TAX ACT AND RULE THEREUNDER ARE NOT ABLE TO MEET PARTICULAR SITUATION. THIS VIE W IS FORTIFIED BY RATIO LAID DOWN IN THE CASE OF M.K. MOHAMMED KUN HI (SUPRA), WHEREIN IT HAS BEEN HELD THAT TRIBUNAL HAS POWER IDENTICAL TO APPELLATE COURT UNDER C.P.C. WE ARE OF THE VIEW THAT ONCE REVENUE IS NOT ABLE TO GET EXACT ADDRESS OF AS SESSEE, HOW IT WILL FOLLOW THE SAME, IN CASE MATTER IS DECIDED IN FAVOUR OF REVENUE. IN THE FACTS AND CIRCUMSTANCES OF THE CASE , WE HAVE NO ALTERNATIVE BUT TO DISMISS THE APPEAL. HOWEVER, REV ENUE IS AT LIBERTY TO GET THIS ORDER RECALLED TO DECIDE ON MER IT IN CASE ASSESSEE IS TRACED BY THE REVENUE WITHIN REASONABLE TIME. THIS VIEW IS FORTIFIED BY THE DECISION OF AHMEDABAD BENC H A OF THE TRIBUNAL IN THE CASE OF DY. CIT VS. ADITYA ORGANIZE RS (P) LTD. (2004) 91 ITD 342 (AHD). IN THE RESULT, THE APPEAL FILED BY REVENUE IS DISMISSED. 9. AS THE APPEAL FILED BY THE REVENUE ITSELF WAS DI SMISSED AS INDICATED ABOVE AND THE CROSS OBJECTION ARISES ONLY AS A RESULT OF THAT APPEAL, THE CROSS OBJECTION FILED BY THE AS SESSEE HAS BECOME INFRUCTUOUS. HENCE, THE CROSS-OBJECTION FILE D BY THE ASSESSEE IS DISMISSED BEING INFRUCTUOUS. IN THE RE SULT, THE APPEAL OF THE REVENUE AND THE CROSS-OBJECTION OF TH E ASSESSEE, BOTH ARE DISMISSED ORDER PRONOUNCED IN THE COURT ON 12TH FEBRUARY 2016 AT AHMEDABAD. SD/- SD/- ANIL CHATURVEDI SHAILENDRA K. YADAV (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD; DATED 12/02/2016 BIJU T., PS ITA NO.887/AHD/2012 & CO 107/AHD 2012 ASSESSEE - SHRI THAKORBHAI M. PATEL AY 2008-09 7 !' #'$ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! ' ' # / CONCERNED CIT 4. ' ' # ( ) / THE CIT(A) 5. &'( ! , ' ! , / DR, ITAT, AHMEDABAD 6. (- . / GUARD FILE. / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD