Dy.Commissioner of Income Tax, Faizabad V. M/s. Co.operative Cane Development, Faizabad

ITA 40/LKW/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83384 (ITAT-LUCKNOW)
• Duration Of Justice: 2 year(s) 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-11-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 18-09-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 02-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK MISHRA
• Keywords: Opportunity of being heard

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.40/LKW/2012 ASSESSMENT YEAR:2007-08 DY. CIT CIRCLE FAIZABAD V. M/S CO-OPERATIVE CANE DEVELOPMENT UNION LTD. MOTINAGAR, MASODHA FAIZABAD PAN/PAN:AAAAC3037C (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. ALOK MISHRA, D.R. RESPONDENT BY: NONE DATE OF HEARING: 18 09 2014 DATE OF PRONOUNCEMENT: 10 11 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 ON FACTS AND IN LAW IN TREATING THE INTEREST INCOME AS DEDUCTIBLE UNDER SECTION 80P(2)(A) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT') IGNORING THE FACT THAT THE SAID INCOME IS NOT COVERED UNDER THE ABOVE SECTION. 2. THIS APPEAL WAS LISTED FOR HEARING ON 18.9.2014, BUT NONE APPEARED ON BEHALF OF THE ASSESSEE. ON A CAREFUL PERUSAL OF RECORD, IT IS NOTICED THAT THE APPEAL WAS FILED BY THE REVENUE IN THE MONTH OF FEBRUARY, 2012. THEREAFTER NOTICES WERE ISSUED THROUGH REGISTERED POST TO THE ASSESSEE, BUT THEY WERE NOT SERVED UPON THE ASSESSEE, AS THE A/D CARD HAS NOT BEEN RECEIVED BACK IN THE OFFICE OF THE TRIBUNAL. WHEN THE TRIBUNAL COULD NOT GET THE NOTICE SERVED UPON THE ASSESSEE BY SENDING NOTICES BY REGISTERED A/D, IT WAS DECIDED TO GET THE NOTICE SERVED UPON THE ASSESSEE THROUGH THE :- 2 -: DEPARTMENT AND THE LD. D.R. WAS DIRECTED TO GET THE NOTICE OF HEARING SERVED UPON THE ASSESSEE, AS THE APPEAL WAS FILED BY THE REVENUE AND THE REVENUE HAS ALL THE PARAPHERNALIA FOR SERVICE OF NOTICE, BUT DESPITE VARIOUS OPPORTUNITIES AFFORDED TO THE LD. D.R. FOR SERVICE OF NOTICE OF HEARING ON THE ASSESSEE, THE NOTICE WAS NOT SERVED UPON THE ASSESSEE AND THEREFORE NONE APPEARED ON BEHALF OF THE ASSESSEE. 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. 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 -: 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 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. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:10 TH NOVEMBER, 2014 JJ:1610 :- 4 -: COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR