Income Tax Officer, Barabanki V. Sh. Rahul Kumar Gupta, Barabanki

ITA 143/LKW/2014

• Counselvise Citation: 14323714 RSA 2014
• Duration Of Justice: 8 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 01-12-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 11-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y P SRIVASTAV
• Keywords: Opportunity of being heard
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.143/LKW/2014 ASSESSMENT YEAR:2009-10 INCOME TAX OFFICER BARABANKI V. SHRI. RAHUL KUMAR GUPTA VILLAGE & POST RAMNAGAR BARABANKI TAN/PAN:AGDPG910D (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. Y. P. SRIVASTAV, D.R. RESPONDENT BY: NONE DATE OF HEARING: 01 12 2014 DATE OF PRONOUNCEMENT: 05 12 2014 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A) ON A SOLITARY GROUND THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER OF RS.15.05 LAKHS UNDER SECTION 69 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT'), AS THE ASSESSEE FAILED TO EXPLAIN THE DEPOSIT MADE IN HDFC BANK DURING THE YEAR UNDER CONSIDERATION. 2. THIS APPEAL WAS LISTED FOR HEARING ON 1.12.2014, BUT NONE APPEARED ON BEHALF OF THE ASSESSEE. 3. ON PERUSAL OF RECORD, IT IS NOTICED THAT THIS APPEAL WAS FILED IN MARCH, 2014. THEREAFTER IT WAS LISTED FOR HEARING ON DIFFERENT DATES. INITIALLY NOTICE WAS ISSUED THROUGH REGISTERED AD, BUT IT REMAINED UNSERVED. AGAIN NOTICE WAS ISSUED BY RPAD BY THE REGISTRY OF THE TRIBUNAL BUT IT WAS AGAIN :- 2 -: NOT SERVED UPON THE ASSESSEE. WHEN THE TRIBUNAL COULD NOT GET THE NOTICE SERVED UPON THE ASSESSEE, IT WAS DECIDED TO ISSUE NOTICE THROUGH THE DEPARTMENT AND THEREAFTER THREE NOTICES WERE ISSUED THROUGH THE DEPARTMENT FOR SERVICE UPON THE ASSESSEE, BUT NO RESPONSE WAS RECEIVED FROM THE DEPARTMENT WITH REGARD TO THE SERVICE OF NOTICE OF HEARING. ON VERIFICATION FROM THE LD. D.R. WITH REGARD TO THE SERVICE OF NOTICE OF HEARING UPON THE ASSESSEE, IT WAS BROUGHT TO OUR NOTICE THAT EVERY TIME THE LD. D.R. HAS SENT NOTICE TO THE ASSESSING OFFICER FOR SERVICE OF NOTICE OF HEARING UPON THE ASSESSEE, BUT THE LD. D.R. DID NOT RECEIVE ANY COMMUNICATION FROM THE ASSESSING OFFICER WITH REGARD TO THE SERVICE OF NOTICE OF HEARING. 4. SINCE THIS APPEAL WAS FILED BY THE REVENUE AND THE GROUNDS WERE SIGNED BY THE ASSESSING OFFICER, IT WAS THE RESPONSIBILITY UPON THE REVENUE TO GET THE NOTICE SERVED UPON THE ASSESSEE WHEN THE TRIBUNAL IS NOT ABLE TO GET THE NOTICE OF HEARING SERVED UPON THE ASSESSEE EVEN AFTER ITS CONTINUOUS EFFORTS. BUT DESPITE REPEATED REMINDERS, THE DEPARTMENT HAS NOT SERVED THE NOTICE OF HEARING UPON THE ASSESSEE. IN THE ABSENCE OF PROPER SERVICE OF NOTICE OF HEARING, IT HAS BECOME VERY DIFFICULT FOR US TO DISPOSE OF THE APPEAL OF THE REVENUE. THE PATHETIC ATTITUDE OF THE ASSESSING OFFICER WITH REGARD TO THE SERVICE OF NOTICE OF HEARING UPON THE ASSESSEE WAS NOT APPRECIATED BY THE TRIBUNAL IN THE CASE OF DY. CIT, CIRCLE, FAIZABAD VS. M/S CO-OPERATIVE CANE DEVELOPMENT UNION LTD., FAIZABAD IN I.T.A. NO. 40/LKW/2012 WHERE THE DEPARTMENT IS NOT ABLE TO SERVE NOTICE OF HEARING UPON THE ASSESSEE DESPITE DIRECTIONS AND THE TRIBUNAL HAS DISMISSED THE APPEAL OF THE REVENUE ON ACCOUNT OF NON-PROSECUTION. THE TRIBUNAL HAS MADE THE FOLLOWING OBSERVATIONS WHILE DISMISSING THE APPEAL OF THE REVENUE ON ACCOUNT OF NON-PROSECUTION:- 3. ON A CAREFUL PERUSAL OF RECORD, WE FIND THAT THE TRIBUNAL HAS ISSUED NOTICE OF HEARING THROUGH REGISTERED POST AT 9 TIMES, BUT NONE OF THE NOTICE WAS SERVED UPON THE ASSESSEE. THEREAFTER THE LD. D.R. :- 3 -: WAS DIRECTED TO GET THE NOTICE SERVED UPON THE ASSESSEE AT FOUR TIMES, BUT NO EFFORT WAS MADE BY THE DEPARTMENT TO GET THE NOTICE SERVED UPON THE ASSESSEE. UNDER THESE CIRCUMSTANCES, IT HAS BECOME VERY DIFFICULT FOR THE TRIBUNAL TO GET THE NOTICE SERVED UPON THE ASSESSEE. THIS IS NOT THE FIRST CASE IN WHICH NOTICES ARE NOT BEING SERVED UPON THE ASSESSEE BY THE REVENUE DESPITE REPEATED DIRECTIONS OF THE TRIBUNAL. THOUGH THERE IS NO SPECIFIC RULE IN THE ITAT RULES FOR DISMISSAL OF THE REVENUES APPEAL ON ACCOUNT OF NON-PROSECUTION, BUT THE TRIBUNAL IS EMPOWERED TO PASS AN ORDER UNDER SECTION 254(1) OF THE ACT. FOR THE SAKE OF REFERENCE, WE EXTRACT THE RELEVANT PROVISIONS OF SECTION 254(1) OF THE ACT AS UNDER:- 254. ORDERS OF APPELLATE TRIBUNAL.--(1) THE APPELLATE TRIBUNAL MAY, AFTER GIVING BOTH THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD, PASS SUCH ORDERS THEREON AS IT THINKS FIT. 4. THE POWERS OF THE TRIBUNAL WERE REPEATEDLY EXAMINED BY THE HON'BLE APEX COURT AND VARIOUS HIGH COURTS IN THE FOLLOWING CASES:- 1. RITZ LTD. V. VYAS (D.D.), 185 ITR 311 (MUMBAI). 2. AGRA BEVERAGES CORPN. (P.) LTD. VS. ITAT, 83 TAXMANN 632 (ALL.) 3. INCOME-TAX OFFICER V. MOHAMMED KUNHI (M.K.), 71 ITR 815 (SC) 5. SINCE THE REVENUE HAS FILED THE PRESENT APPEAL, IT IS THEIR MORAL RESPONSIBILITY TO FURNISH THE COMPLETE DETAILS OF THE ASSESSEE AND IN CASE THE TRIBUNAL IS NOT ABLE TO SERVE THE NOTICE OF HEARING UPON THE ASSESSEE, THE DEPARTMENT SHOULD GET THE NOTICE SERVED UPON THE ASSESSEE, AS THEY HAVE ALL THE PARAPHERNALIA IN THIS REGARD, SO THAT :- 4 -: THE APPEAL CAN BE DISPOSED OF AFTER GIVING OPPORTUNITY OF BEING HEARD TO BOTH THE PARTIES. BUT IN THE INSTANT CASE, THE REVENUE HAS NOT MADE ANY EFFORT TO GET THE NOTICE SERVED UPON THE ASSESSEE DESPITE REPEATED DIRECTIONS OF THE TRIBUNAL. UNDER THESE CIRCUMSTANCES, WE ARE LEFT WITH NO OTHER OPTION BUT TO DISMISS THE APPEAL OF THE REVENUE FOR NON-PROSECUTION. ACCORDINGLY, WE DISMISS THE SAME. 6. SO FAR AS MERIT OF THE APPEAL IS CONCERNED, WE FIND THAT THE LD. CIT(A) HAS DECIDED THE ISSUE FOLLOWING THE ORDER OF THE TRIBUNAL. SINCE NO INFIRMITY IS NOTICED IN THE ORDER OF THE TRIBUNAL, WE CONFIRM THE SAME. 7. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. 8. COPY OF THIS ORDER BE SENT TO THE CHIEF COMMISSIONER OF INCOME-TAX, LUCKNOW TO ISSUE NECESSARY INSTRUCTIONS TO THE ASSESSING OFFICERS OR THE CONCERNED AUTHORITIES WHO ARE RESPONSIBLE FOR THE SERVICE OF NOTICE OF HEARING UPON THE ASSESSES WHEN THE APPEAL IS FILED BY THE REVENUE AND AS AND WHEN THEY WERE DIRECTED TO DO SO BY THE TRIBUNAL. 5. SIMILAR IS THE POSITION IN THIS CASE WHERE THE REVENUE IS NOT RESPONDING TO THE NOTICE OF HEARING ISSUED THROUGH THE LD. D.R. AND THE LD. D.R. HAS EXPRESSED HIS HELPLESSNESS IN THE SERVICE OF NOTICE OF HEARING, AS IT WAS TO BE DONE BY THE CONCERNED ASSESSING OFFICER. THEREFORE, WE ARE OF THE VIEW THAT IN SUCH A SITUATION, WHERE THE RESPONSIBILITY WAS UPON THE REVENUE TO GET THE NOTICE SERVED UPON THE ASSESSEE, AS THEY HAVE ALL THE PARAPHERNALIA, WHERE THE TRIBUNAL IS NOT ABLE TO GET THE NOTICE SERVED UPON THE ASSESSEE AND IF THE REVENUE IS ALSO FAILED TO DISCHARGE ITS ONUS, THE TRIBUNAL CAN DISMISS THE APPEAL OF THE REVENUE FOR NON-PROSECUTION. ACCORDINGLY FOLLOWING THE AFORESAID ORDER OF THE TRIBUNAL, WE DISMISS THE APPEAL OF THE REVENUE FOR NON-PROSECUTION. :- 5 -: 6. SINCE IT HAS BEEN NOTICED THAT IN A NUMBER OF CASES, THE CONCERNED ASSESSING OFFICERS ARE NOT RESPONDING TO THE NOTICE OF HEARING ISSUED THROUGH THE LD. D.R., THE CHIEF COMMISSIONER OF INCOME-TAX, LUCKNOW IS REQUESTED TO TAKE COGNIZANCE OF THE PATHETIC ATTITUDE OF THE ASSESSING OFFICERS WITH REGARD TO THE SERVICE OF NOTICE OF HEARING, SO THAT THE REVENUES APPEALS CAN BE DISPOSED OF BY THE TRIBUNAL. 7. COPY OF THIS ORDER BE SENT TO THE CHIEF COMMISSIONER OF INCOME-TAX, LUCKNOW TO ISSUE NECESSARY DIRECTIONS TO THE ASSESSING OFFICERS AND ALL THE CONCERNED AUTHORITIES WHO ARE RESPONSIBLE FOR SERVICE OF NOTICE OF HEARING UPON THE ASSESSEE WHEN THE APPEAL IS FILED BY THE REVENUE AND THEY WERE DIRECTED TO DO SO BY THE TRIBUNAL. 8. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 5 TH DECEMBER, 2014 JJ:0112 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR