Sri Kada Suryanarayana, Rajahmundry V. The ITO, Ward-3, Rajahmundry

ITA 518/VIZ/2005

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7116 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 5 year(s) 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 09-03-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 14-12-2005
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D S SUNDER SINGH

Judgement Text

ITA 518 OF 05 K S NARAYANA, RJY IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI BR BASKARAN, ACCOUNTANT MEMBER ITA NO. 518 /VIZAG/ 20 05 ASSESSMENT YEAR : 2002 - 03 KADA SURYANARAYANA RAJAHMUNDRY VS. ITO WARD - 3 RAJAHMUNDRY (APPELLANT) (RESPONDENT) PAN NO.AJIPK 1395D APPELLANT BY: SHRI G.V.N. HARI, CA RESPONDENT BY: SHRI D.S. SUNDER SINGH, DR ORDER PER SHRI S.K. YADAV, JUDICIAL MEMBER:- THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) ON VARIOUS GROUNDS PERTAINING TO THE ASSESSM ENT YEAR 2002-03. 2. THIS APPEAL WAS HEARD AND DISPOSED OF BY THE TRI BUNAL VIDE ITS ORDER DATED 18.2.2009. THERE AFTER THE ASSESSEE MOVED A MISCELLANEOUS APPLICATION U/S 254(2) FOR RECALLING OF THE ORDER B UT THE SAME WAS ALSO DISMISSED, AS NONE APPEARED ON BEHALF OF THE ASSESS EE TO PROSECUTE THE SAME AND THE TRIBUNAL DID NOT FIND ANY MERIT THEREI N. 3. AGAIN THE ASSESSEE HAS MOVED ANOTHER MISCELLANEO US APPLICATION VIDE M.A. NO.39 OF 2009 U/S 254(2) WITH REQUEST FOR RECA LLING OF THE ORDER. THIS APPLICATION WAS HEARD ON MERIT AND THE TRIBUNAL REC ALLED ITS EARLIER ORDERS SUBJECT TO PAYMENT OF COST OF RS.1,000/- TO BE DEPO SITED IN THE ACCOUNT IN WHICH THE TRIBUNAL FEES ARE BEING PAID AND DIRECTED THE REGISTRY TO POST THIS APPEAL FOR HEARING ON 27.1.2010. SINCE THE DATE OF HEARING WAS ANNOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE COUNSEL FO R THE ASSESSEE, NO FRESH NOTICE WAS DIRECTED TO BE ISSUED TO THE PARTIES. T HE DIRECTIONS OF THE TRIBUNAL WAS NOT COMPLIED WITH BY THE ASSESSEES AS HE HAS NO T DEPOSITED THE COST IMPOSED UPON HIM. THE OFFICE WITHOUT NOTICING THES E FACTS, HAS FIXED THE APPEAL FOR HEARING AND THE TRIBUNAL HAS ALSO HEARD THE APPEAL ON 9.12.10. AT ITA 518 OF 05 K S NARAYANA, RJY 2 THE TIME OF DICTATION OF THE ORDER, THE TRIBUNAL RE ALIZED THAT ITS DIRECTION FOR RECALLING OF THE ORDER WAS NOT COMPLIED WITH BY THE ASSESSEES AS COST IMPOSED UPON HIM WAS NOT PAID. SINCE THE ORDER WAS RECALLED SUBJECT TO PAYMENT OF COST, THE ORDER CANNOT BE CALLED TO BE R ECALLED WITHOUT MAKING ANY PAYMENT OF COST BY THE ASSESSEES. THE REGISTRY HAS MISTAKENLY LISTED THE APPEAL FOR HEARING BEFORE THE TRIBUNAL. HAVING NOT ED THESE FACTS, THE TRIBUNAL RELEASED THE MATTER ON 7.1.2011 IN ORDER T O CONFRONT THE FACTS THAT IN THE ABSENCE OF DEPOSIT OF COST, THE APPEAL OF THE A SSESSEE CANNOT BE HEARD AND DISPOSED OF. 4. ACCORDINGLY, THE MATTER WAS LISTED FOR HEARING O N 3.3.2011 AND THE LD. COUNSEL FOR THE ASSESSEE HAS APPEARED. THOUGH WE H AVE CATEGORICALLY CLARIFIED IN THE ORDER WHILE RELEASING THE APPEAL F OR HEARING, YET THE ASSESSEE DID NOT DEPOSIT THE COST IMPOSED UPON HIM WHILE REC ALLING THE ORDERS OF THE TRIBUNAL DATED 4.12.2009. SINCE THE ASSESSEE HAS N OT MADE THE COMPLIANCE OF THE DIRECTION OF THE TRIBUNAL WHILE RECALLING TH E ORDERS, BY DEPOSITING A SUM OF RS.1,000/- AS COST, THE ORDER OF THE TRIBUNAL DI SMISSING THE APPEAL CANNOT BE CALLED TO HAVE BEEN RECALLED. ONCE THE EARLIER ORDER OF THE TRIBUNAL DISMISSING THE APPEAL HAS NOT BEEN RECALLED, THE TR IBUNAL HAS NO JURISDICTION TO HEAR THE APPEAL IN THE LIGHT OF THE EARLIER ORDE R OF THE TRIBUNAL DISPOSING OF THE MAIN APPEAL. UNDER THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE TRIBUNAL HAS NO JURISDICTION TO HEAR THE APPEAL OF THE ASSESSEES AS THE EARLIER ORDER OF THE TRIBUNAL HAS NOT BEEN RECALLED. ACCOR DINGLY, WE DISMISS THE APPEAL OF THE ASSESSEES. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 9.3.2011 SD/- SD/- (BR BASKARAN) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER VG/SPS VISAKHAPATNAM, DATED 9 TH MARCH, 2011 ITA 518 OF 05 K S NARAYANA, RJY 3 COPY TO 1 KADA SURYANARAYANA, PROP: SRI SURYA ENGINEERING WOR KS, PILLIVARI STREET, NEAR KODANDARAMALAYAM, A.V. APPA RAO ROAD, RAJAHMUN DRY 2 ITO WARD - 3, RAJAHMUNDRY 3 THE CI T, RAJAHMUNDRY 4 THE CIT (A) , RAJAHMUNDRY 5 THE DR, ITAT, VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM