The ITO,Vapi Ward-1, Vapi V. Shri Harishankar Ambikaprasad Singh, SILVASSA

ITA 348/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1567 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 3 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 27-05-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 06-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEEPAK SUTARIA
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH AHMEDABAD , BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER. ITA. NO.348/AHD/2012 (ASSESSMENT YEAR:2005-06) INCOME-TAX OFFICER, VAPI WARD-1, VAPI APPELLANT VS. SHRI HARISHANKAR AMBIKAPRASAD SINGH GALA NO.102, B-SHALIMAR IND. ESTATE, DAYAT FALIA, SILVASSA RESPONDENT PAN: ABBPS2491M /BY APPELLANT : SHRI DEEPAK SUTARIA, SR. D.R. /BY RESPONDENT : NONE /DATE OF HEARING : 27.05.2016 /DATE OF PRONOUNCEMENT : 30.05.2016 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY REVENUE AGAINST THE O RDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), VALSAD FO R A.Y. 2005-06. 2. THE NOTICE OF HEARING WAS SENT TO THE ASSESSEE T HROUGH THE DEPARTMENTAL REPRESENTATIVE FOR EFFECTIVE SERVI CE ON THE ITA NO.348/AHD/12 A.Y. 05-06 [ITO VS. SHRI HARISHANKAR A. SINGH] PAGE 2 RESPONDENT ASSESSEE. HOWEVER ON THE DATE OF HEARING NO 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 27.05.2016 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 SE RVICE OF NOTICE UPON ASSESSEE. IT SHOWS THAT REVENUE HAS NO T PROVIDED PROPER ADDRESS OF THE ASSESSEE. OPPORTUNITY OF HEAR ING IS ESSENTIAL BEFORE ADJUDICATING APPEAL FOR WHICH SERV ICE OF NOTICE IS A CONDITION PRECEDENT. UNDER SECTION 254(1) THE TRIBUNAL 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 APPEAL, AND THE DEPARTMENTAL REPRESENTATIVE HAS NOT GOT THE NOTICE SERVED IN SPITE OF SUFFICIENT OPPORTUNI TY, IT HAS NOT BEEN POSSIBLE TO CONDUCT THE ADJUDICATION PROCEEDI NGS AS PER THE REQUIREMENTS OF SECTION 254(1). WHEN THE BENCH CONFRONTED ITA NO.348/AHD/12 A.Y. 05-06 [ITO VS. SHRI HARISHANKAR A. SINGH] PAGE 3 THE LEARNED DEPARTMENTAL REPRESENTATIVE AS TO WHY T HE REVENUE'S APPEAL MAY NOT BE DISMISSED FOR APATHY IN SERVICE OF NOTICE ON THE RESPONDENT-ASSESSEE, THE LEARNED DEPA RTMENTAL 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 TR IBUNAL AND DOES NOT IN ANY MANNER RUN CONTRARY TO ANY PROVISIO NS 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 ACCOMPLISHMENT OF THE OBJECT INTENDED TO BE SECURED . THE ITA NO.348/AHD/12 A.Y. 05-06 [ITO VS. SHRI HARISHANKAR A. SINGH] PAGE 4 DOCTRINE OF INCIDENTAL OR IMPLIED POWERS OF THE APP ELLATE AUTHORITY HAVE BEEN ENUNCIATED AND ENDORSED BY THE HON'BLE SUPREME COURT IN THE CASE OF ITO V. M.K. MOHAMMED K UNHI [1969] 71 ITR 815. IT IS A WELL ESTABLISHED RULE OF LEGAL JURISPRUDENCE THAT WHERE AN ACT CONFERS A JURISDICT ION, IT IMPLIEDLY GRANTS THE POWERS OF DOING ALL SUCH ACTS, OR EMPLOYING SUCH MEANS, AS ARE ESSENTIALLY 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, BE ING 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 INHERENT IN THE TRIBUNAL, OR BECAUSE ITS JURISDICTION IS PLENARY, BUT BECAUSE IT IS THE LEGISLATIVE INTENT THAT THE POWER WHICH IS EXPRESSL Y GRANTED IN THE ASSIGNED FIELD OF JURISDICTION IS EFFICACIOUSLY AND MEANINGFULLY EXERCISED. THE POWERS OF THE TRIBUNAL ARE NO DOUBT LIMITED. ITS AREA OF JURISDICTION IS CLEARLY DEFINED BUT, WITHIN THE BOUNDS OF ITS JURISDICTION, IT HAS ALL T HE POWERS EXPRESSLY AND IMPLIEDLY GRANTED. THE IMPLIED GRANT IS, OF ITA NO.348/AHD/12 A.Y. 05-06 [ITO VS. SHRI HARISHANKAR A. SINGH] PAGE 5 COURSE, LIMITED BY THE EXPRESS GRANT AND, THEREFORE , IT CAN ONLY BE OF SUCH POWER AS ARE TRULY INCIDENTAL AND ANCILL ARY FOR DOING ALL SUCH ACTS OR EMPLOYING ALL SUCH MEANS AS ARE RE ASONABLY 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 TRIBU NAL 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 R EQUEST TO GET THE NOTICE SERVED BY ALTERNATE WAY I.E., BY WAY OF PUBLICATION ETC. WHICH IS LAID DOWN IN RULE 20 OF C PC. TRIBUNAL CAN TAKE HELP ON PROCEDURAL ASPECT AS LAID DOWN UND ER RELEVANT PROVISIONS OF THE CIVIL PROCEDURE CODE WHE RE INCOME- TAX ACT AND RULE THEREUNDER ARE NOT ABLE TO MEET PA RTICULAR SITUATION. THIS VIEW IS FORTIFIED BY RATIO LAID DOW N IN THE CASE OF ITA NO.348/AHD/12 A.Y. 05-06 [ITO VS. SHRI HARISHANKAR A. SINGH] PAGE 6 M.K. MOHAMMED KUNHI (SUPRA), WHEREIN IT HAS BEEN HE LD THAT TRIBUNAL HAS POWER IDENTICAL TO APPELLATE COURT UND ER C.P.C. WE ARE OF THE VIEW THAT ONCE REVENUE IS NOT ABLE TO GET EXACT ADDRESS OF ASSESSEE, HOW IT WILL FOLLOW THE SAME, I N CASE MATTER IS DECIDED IN FAVOUR OF REVENUE. IN THE FACTS AND C IRCUMSTANCES OF THE CASE, WE HAVE NO ALTERNATIVE BUT TO DISMISS THE APPEAL. HOWEVER, REVENUE IS AT LIBERTY TO GET THIS ORDER RE CALLED TO DECIDE ON MERIT IN CASE ASSESSEE IS TRACED BY THE R EVENUE WITHIN REASONABLE TIME. THIS VIEW IS FORTIFIED BY THE DECISION OF AHMEDABAD BENCH A OF THE TRIBUNAL IN THE CASE OF DY. CIT VS. ADITYA ORGANIZERS (P) LTD. (2004) 91 ITD 342 (AHD). 9. IN THE RESULT, THE APPEAL FILED BY REVENUE IS DI SMISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE 30 TH DAY OF MAY, 2016. SD/- SD/- (ANIL CHATURVEDI) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBE R AHMEDABAD: DATED 30/05/2016 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE $ %&%'( ) / CONCERNED CIT 4 )- / CIT (A) ,-./00'(1 '( 123& / DR, ITAT, AHMEDABAD 4/5678 / GUARD FILE. BY ORDER / 1 / 2% '( 123&