The ITO, Ward-5(1), Baroda V. M/s. Dharti Developers, Baroda

ITA 1466/AHD/2009

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60570 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-07-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 28-06-2012
• Assessment Year: 2002-2003
• Appeal Filed On: 08-05-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P BATHEJA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, AHMEDABAD BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER I.T.A. NO.1466 / AHD/2009 (ASSESSMENT YEAR 2002-03) ITO, WARD 5(1), BARODA VS. M/S. DHARTI DEVELOPERS, SHIVAM PARK, AJWA ROAD, BARODA PAN/GIR NO. : AADFD0288Q C.O. NO.120/AHD/2009 (ASSESSMENT YEAR 2002-03) M/S. DHARTI DEVELOPERS, V S. ITO WARD 5(1), SHIVAM PARK, BARODA AJWA ROAD, BARODA (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI O P BATHEJA, SR. DR RESPONDENT BY: NONE DATE OF HEARING: 28.06.2012 DATE OF PRONOUNCEMENT: 06.07.2012 O R D E R PER SHRI A. K. GARODIA, AM:- THIS APPEAL IS FILED BYTE REVENUE AND THE C.O. IS FILED BY HE ASSESSEE WHICH ARE DIRECTED AGAINST THE ORDER OF LD . CIT(A) V, BARODA DATED 06.02.2009 FOR THE ASSESSMENT YEAR 2002-03. 2. FROM THE ENTRY IN THE ORDER SHEET IT IS SEEN THAT O N 29.02.2012, SHRI ANIL R SHAH WAS APPEARING ON BEHALF OF THE ASSESSEE AS AR AND HE HAS I.T.A.NO.1466 /AHD/2009 C.O.120/AHD/2009 2 FILED A PAPER BOOK ALSO OF 39 PAGES BUT AFTER THAT DATE, HE IS NOT APPEARING. THIS APPEAL AND THE C.O. WERE FIXED FOR HEARING ON 07.05.2012 AND NOTICE WAS SENT TO THE ASSESSEE BY RPAD BUT THE SAME HAS C OME BACK UNSERVED WITH THE REMARKS BY THE POSTAL AUTHORITIES LEFT. THEREAFTER, THE APPEAL WAS AGAIN FIXED FOR HEARING ON 28.06.2012 AND NOTIC E WAS SENT THROUGH LD. DR. ON THIS DATE ALSO, NONE APPEARED ON BEHALF OF THE ASSESSEE. LD. D.R. ALSO COULD NOT SUBMIT ANY EVIDENCE REGARDING S ERVICE OF NOTICE. IN FACT, IT WAS SUBMITTED BY THE LD. D.R. BEFORE US TH AT NOTICE WAS NOT GIVEN TO HIM FOR SERVICE ON THE ASSESSEE BUT THIS CONTENT ION OF THE LD. D.R. IS NOT CORRECT BECAUSE AS PER THE RECORDS OF THE TRIBU NAL, NOTICE OF HEARING WAS GIVEN TO LD. D.R. FOR SERVICE OF NOTICE ON 24.0 5.2012. SINCE, THE LD. D.R. COULD NOT SERVE THE NOTICE ON THE ASSESSEE, WE FEEL THAT THIS APPEAL OF THE REVENUE SHOULD BE DISMISSED BECAUSE WHEN THE RE VENUE IS NOT IN A POSITION TO LOCATE THE ASSESSEE AND SERVE THE NOTIC E, EVEN IF THE APPEAL OF THE REVENUE IS DECIDED IN ITS FAVOUR, THE REVENUE W ILL NOT BE IN A POSITION TO COLLECT THE TAX FROM THE ASSESSEE. HENCE, WE DI SMISS THIS APPEAL OF THE REVENUE WITH THE LIBERTY TO FILE MISCELLANEOUS APPL ICATION AS PER LAW FOR RECALL OF THIS ORDER IF THE REVENUE FINDS ITSELF IN A POSITION TO SERVE THE NOTICE ON THE ASSESSEE. ACCORDINGLY, THE APPEAL OF THE REVENUE IS DISMISSED. 3. THE C.O. FILED BY THE ASSESSEE IS ALSO LIABLE TO BE DISMISSED FOR WANT OF PROSECUTION BECAUSE NOTICE SENT TO THE ASSE SSEE FOR THE DATE OF HEARING ON 07.05.2012 HAD BEEN RETURNED UNSERVED BY THE POSTAL AUTHORITIES WITH THE REMARKS LEFT AND HENCE, THE C.O. OF THE ASSESSEE IS DISMISSED FOR WANT OF PROSECUTION. UNDER THESE CIR CUMSTANCES, IT IS INFERRED THAT THE ASSESSEE IS NOT INTERESTED IN PUR SUING HIS C.O. AND HENCE, I.T.A.NO.1466 /AHD/2009 C.O.120/AHD/2009 3 THE SAME IS LIABLE TO BE DISMISSED FOR NON PROSECUT ION. IN OUR ABOVE VIEW, WE FIND SUPPORT FROM THE FOLLOWING DECISIONS:- IN THE CASE OF CIT VS B.N. BHATTACHARGEE AND ANOTHE R, REPORTED IN 118 ITR 461 (RELEVANT PAGES 477 AND 478) WHEREIN TH EIR LORDSHIPS HAVE HELD THAT THE APPEAL DOES NOT MEAN MERELY FIL ING OF THE APPEAL BUT EFFECTIVELY PURSUING IT. IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR VS C IT 223 ITR 480 (M.P.) WHILE DISMISSING THE REFERENCE MADE AT THE I NSTANCE OF THE ASSESSEE IN DEFAULT MADE FOLLOWING OBSERVATION IN T HEIR ORDER:- IF THE PARTY, AT WHOSE INSTANCE THE REFERENCE IS M ADE, FAILS TO APPEAR AT THE HEARING, OR FAILS IN TAKING STEPS FOR PREPARATION OF THE PAPER BOOKS SO AS TO ENABLE HEARING OF THE REFERENC E, THE COURT IS NOT BOUND TO ANSWER THE REFERENCE. IN THE CASE OF CIT VS MULTIPLAN INDIA LIMITED; 38 ITD 320 (DEL), THE APPEAL WAS FILED BY THE REVENUE BEFORE THE TRIB UNAL, WHICH WAS FIXED FOR HEARING. BUT ON THE DATE OF HEARING, NOB ODY REPRESENTED THE REVENUE/APPELLANT NOR ANY COMMUNICATION FOR ADJ OURNMENT WAS RECEIVED. THERE WAS NO COMMUNICATION OR INFORMATIO N AS TO WHY THE REVENUE CHOSE TO REMAIN ABSENT ON DATE. THE TR IBUNAL ON THE BASIS OF INHERENT POWERS, TREATED THE APPEAL FILED BY THE REVENUE AS UNADMITTED IN VIEW OF THE PROVISIONS OF RULE 19 OF THE APPELLATE TRIBUNAL RULES, 1963. 4. IN THE RESULT, APPEAL OF THE REVENUE, AS WELL AS THE C.O. OF THE ASSESSEE ARE DISMISSED. 5. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (KUL BHARAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP I.T.A.NO.1466 /AHD/2009 C.O.120/AHD/2009 4 COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 28/6 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 29/6.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S.4/7 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6/7 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.6/7 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 6/7/2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .