Smt Shyamala Jayaraj, Bangalore V. ACIT, Bangalore

MA 116/BANG/2009

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6333 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 5 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 08-04-2011
• Assessment Year: misc
• Appeal Filed On: 02-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARESH SAKA JT
• Assessee Lawyers: P DINESH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI GEORGE GEORGE K., JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER M.P. NOS.112 TO 116/BANG/2009 (IN ITA NOS. 97 TO 101/BANG/1994) ASSESSMENT YEARS : 1986-87 TO 1990-91 SMT. SHYAMALA JAYARAJ, 6/9, 13 TH CROSS, 14 TH MAIN, J.P. NAGAR, BANGALORE. : APPLICANT VS. THE ASST. COMMISSIONER OF INCOME TAX (INV.), CIRCLE 3(1), BANGALORE. : RESPONDENT APPLICANT BY : SHRI P. DINESH, ADVOCATE RESPONDENT BY : SHRI NARESH SAKA, JT. CIT(DR) O R D E R PER A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER THESE MISCELLANEOUS PETITIONS FILED BY THE ASSE SSEE WERE DISPOSED OF BY THE TRIBUNAL VIDE ORDER DATED 10.02.2010 DISM ISSING THE PETITIONS. ON FURTHER APPEAL BY THE ASSESSEE, THE HONBLE HIGH COURT OF KARNATAKA VIDE ORDER DATED 20.10.2010 SET ASIDE THE ORDER OF THE TRIBUNAL DATED 10.2.10 AND REMITTED BACK THESE PETITIONS TO THE TR IBUNAL FOR FRESH DISPOSAL WITH THE FOLLOWING OBSERVATIONS: M.P. NOS.112 TO 116/BANG/09 PAGE 2 OF 4 5. ON PERUSAL OF THE IMPUGNED ORDER, WHAT WEIGHED WITH THE TRIBUNAL WAS THE POSTING OF THE MATTER FOR 22 TIMES AND ALSO THE LAPSE OF SIX AND HALF YEARS FROM THE DATE OF DISMIS SAL OF THE APPEALS IN APPROACHING THE TRIBUNAL WITH THE MISCEL LANEOUS PETITIONS. 6. FOR THE PURPOSE OF CONSIDERING THESE APPEALS, RU LES 23 AND 24 OF THE APPELLATE TRIBUNAL RULES ARE RELEVANT. 7. THE TRIBUNAL IN THE IMPUGNED ORDER DATED 10.2.20 10 DOES NOT INQUIRE INTO THE CONTROVERSY WHETHER THE NOTICE ON HEARING WAS SERVED ON THE APPELLANT AFTER THE BLOCK PERIOD OF THREE MONTHS WHEN THE MATTERS CAME TO BE ADJOURNED AT THE REQUES T OF THE REVENUE ON 5.6.2003. EVEN IF THE APPELLANT WAS ABS ENT WHEN THE DR WAS PRESENT, THE TRIBUNAL WAS REQUIRED TO PROCEE D WITH THE MATTERS ON MERITS WITH THE AVAILABLE MATERIAL ON RE CORD. ON THE OTHER HAND, THE APPEALS WERE DISMISSED FOR WANT OF PROSECUTION MUCH AGAINST THE PROCEDURE. UNDER THESE CIRCUMSTAN CES, THE TRIBUNAL HAS TO DISPOSE OF THE MISCELLANEOUS PETITI ON NOS.112- 116/2009 AFTER TAKING INTO CONSIDERATION WHETHER TH E NOTICE WAS SERVED OR NOT ON THE APPELLANT/ASSESSEE AND WHETHER DR WAS PRESENT OR NOT AND THEN TO PROCEED WITH THE MATTER. 8. ACCORDINGLY, THE PRESENT APPEALS ARE ALLOWED SET TING ASIDE THE ORDER OF DISMISSAL DATED 10.2.2010 PASSED IN MI SCELLANEOUS PETITION NOS. 112-116/2009 (IN ITA NO.97-101/BNG/19 94] AND THE MATTER IS REMITTED BACK TO THE TRIBUNAL TO DISP OSE OF THE MATTERS IN THE LIGHT OF THE ABOVE OBSERVATIONS AFTE R GIVING OPPORTUNITY TO BOTH THE PARTIES. 2. BASED ON THE DIRECTIONS OF THE HONBLE HIGH COUR T OF KARNATAKA SUPRA, THESE MISCELLANEOUS PETITIONS HAVE COME UP FOR HEAR ING BEFORE THE TRIBUNAL ON A SECOND ROUND. 3. THE LD. AR FOR THE ASSESSEE SUBMITTED THAT THE T RIBUNAL PASSED THE COMMON ORDER DATED 17.6.2003 IN THE INCOME TAX APPE ALS IN ITA NOS.93 TO 101/BANG/94 DISMISSING THE APPEALS OF THE ASSESS EE EX PARTE SINCE NONE APPEARED FOR THE ASSESSEE ON THE LAST DATE OF HEARING OF APPEALS ON 5.6.2003. IT WAS SUBMITTED THAT PRIOR TO THE HEARIN G ON 5.6.2003, THE CASE M.P. NOS.112 TO 116/BANG/09 PAGE 3 OF 4 WAS BLOCKED FOR A PERIOD OF 3 MONTHS AT THE REQUEST OF LD. DR. HOWEVER, THE ASSESSEE DID NOT RECEIVE ANY NOTICE OF HEARING POSTING THE CASE FOR HEARING ON 5.6.2003, BUT CAME TO KNOW OF THE ORDER OF THE TRIBUNAL DATED 17.6.2003 ONLY WHEN THE TAX RECOVERY OFFICER ISSUED A NOTICE DATED 6.9.2007. HE THEREFORE SUBMITTED THAT THE EX PARTE ORDER DATED 17.6.2003 DISMISSING THE APPEALS MAY BE RECALLED AND REPOSTED FOR HEARING ON MERITS. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE APPEALS IN ITA NO.97 TO 101/B/94 IN THE CASE OF THE ASSESSEE WERE DISMISSED BY THE COMMON ORDER OF THE TRIBUNAL DATED 17.6.2003 SINCE VARIOUS OPPORTUNITIES WERE PROVIDED TO THE ASSESSEE AND THE NOTICES RETURNED UNSERVED. ON 31.5.2002 AT THE REQUEST OF THE LD. DR THE CASE WAS BLOCKED FOR A PERIOD OF 3 MONTHS SINCE IT WAS SUBMI TTED THAT SPECIAL BENCH DECISION WAS AWAITED AND THE CASE WAS POSTED TO 5.6 .2003. ON 5.6.2003 ALSO SINCE THERE WAS NO REPRESENTATION FROM THE ASS ESSEE, THE APPEALS WERE DISMISSED EX PARTE FOR WANT OF PROSECUTION AFT ER HEARING THE LD. DR. SINCE THE NOTICE OF HEARING FIXED ON 5.6.2003 WAS U NSERVED ON THE ASSESSEE AND IT IS SUBMITTED THAT THE ASSESSEE CAME TO KNOW OF THE ORDER DATED 17.6.2003 BASED ON THE HEARING HELD ON 5.6.20 03 ONLY AFTER THE RECEIPT OF NOTICE BY THE TAX RECOVERY OFFICER DATED 6.9.2007, WE ARE OF THE OPINION THAT THE ASSESSEE MUST BE PROVIDED WITH ONE MORE OPPORTUNITY TO REPRESENT HER CASE FOR ADJUDICATION ON MERITS. THE REFORE, WE RECALL THE ORDER OF THE TRIBUNAL DATED 17.6.2003 AND DIRECT TH E REGISTRY TO POST THE APPEALS FOR HEARING IN THE DUE COURSE. THE ASSESS EE IS DIRECTED NOT TO SEEK UNNECESSARY ADJOURNMENTS AND ENSURE THAT PROPE R REPRESENTATION IS M.P. NOS.112 TO 116/BANG/09 PAGE 4 OF 4 MADE IN THE PROCEEDINGS. WITH THESE OBSERVATIONS, THE MISCELLANEOUS PETITIONS ARE ALLOWED. PRONOUNCED IN THE OPEN COURT ON THIS 18 TH DAY OF MAY, 2011. SD/- SD/- ( GEORGE GEORGE K. ) (A. MOHAN ALANKAMONY ) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 18 TH MAY, 2011. DS/- COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. C IT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE (1+1) BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.