ACIT, Pune V. JAYA HIND SCIAKY LTD, Pune

MA 123/PUN/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1289 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 2 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-12-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 25-10-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 10-09-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER M.A. NO.123/PN/2013 ARISING OUT OF ITA NO.712/PN/2009 (ASSTT. YEAR: 2005-06) ACIT, CENTRAL CIRCLE-9 PUNE APPLICANT VS. JAYA HIND SCIAKY LTD., MUMBAI-PUNE ROAD, AKURDI, PUNE 411044 PAN: AABCJ0186A RESPONDENT APPLICANT BY : SHRI S.P. WALIMBE RESPONDENT BY : NONE DATE OF HEARING : 22-11-2013 DATE OF PRONOUNCEMENT : 06-12-2013 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS MISCELLANEOUS APPLICATION HAS BEEN MOVED BY T HE REVENUE ARISING OUT OF ORDER OF THE TRIBUNAL IN ITA NO. 712/PN/2009 DATED 29-03-2011. 2. THE REVENUE INTER-ALIA HAS STATED THAT THE APPEA L OF THE REVENUE WAS DISMISSED BY OBSERVING AS UNDER: 4. APART FROM THE ABOVE, WE FEEL THAT IT HAS BEEN THE ESTABLISHED PRACTICE AND ACCEPTED PROCEDURE THAT IN CASE NOTICES OF HEARING CANNOT BE SERVED ON THE RESPONDE NT ASSESSEE IN REVENUE'S APPEALS, SUCH NOTICES ARE GOT SERVED THROUGH INCOME-TAX AUTHORITIES. SUCH PRACTIC E AND PROCEDURE HAS BEEN LONG ESTABLISHED AND FOLLOWE D IN THE INTEREST OF EXPEDITIOUS ADJUDICATION OF TAX DIS PUTES. 5. APART FROM THE CONSIDERATION OF EXPEDIENCY AND EQUITY AS REFERRED HEREIN ABOVE, WE ARE OF THE CONS IDERED VIEW THAT THE PRACTICE OF GETTING THE SERVICE EFFEC TED ON THE RESPONDENT-ASSESSEE IN A REVENUE'S APPEAL WHERE IN NOTICES OF HEARING COULD NOT BE SERVED ON THE ASSES SEE BY POST IS FULLY IN CONFORMITY WITH THE JUDICIAL PO WERS AND JURISDICTION OF THE TRIBUNAL AND DOES NOT IN AN Y MANNER RUN CONTRARY TO ANY PROVISIONS OF THE STATUT E. POWERS CONFERRED BY AN ENABLING STATUTE INCLUDE NOT ONLY SUCH AS ARE EXPRESSLY GRANTED BUT ALSO, BY IMPLICATION, ALL POWERS WHICH ARE REASONABLY NECESS ARY FOR THE ACCOMPLISHMENT OF THE OBJECT INTENDED TO BE SECURED. THE DOCTRINE OF INCIDENTAL OR IMPLIED POWE RS OF THE APPELLATE AUTHORITY HAVE BEEN ENUNCIATED AND ENDORSED BY THE HON'BLE SUPREME COURT IN THE CASE O F ITO V. M.K. MOHAMMED KUNHI [1969] 71 ITR 815. IT IS A WELL ESTABLISHED RULE OF LEGAL JURISPRUDENCE THAT W HERE AN ACT CONFERS A JURISDICTION, IT IMPLIEDLY GRANTS THE POWERS OF DOING ALL SUCH ACTS, OR EMPLOYING SUCH ME ANS, 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 EXERCIS E OF THE SUBSTANTIVE POWER HAVE TO BE INFERRED - CHIEF EXECUTIVE OFFICER AND VICE-CHAIRMAN, GUJARAT MARITI ME 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 LAMINATES (P.) LTD. [1990] 186 ITR 722, 726, OBSERV ED: THERE IS NO DOUBT THAT THE TRIBUNAL FUNCTIONS AS A COURT WITHIN THE LIMITS OF ITS JURISDICTION. IT HAS ALL THE POWERS CONFERRED EXPRESSLY BY THE STATUTE. FURTHERM ORE, BEING A JUDICIAL BODY, IT HAS ALL THOSE INCIDENTAL AND ANCILLARY POWERS WHICH ARE NECESSARY TO MAKE FULLY EFFECTIVE THE EXPRESS GRANT OF STATUTORY POWERS. CE RTAIN POWERS ARE RECOGNIZED AS INCIDENTAL AND ANCILLARY, NOT BECAUSE THEY ARE INHERENT IN THE TRIBUNAL, OR BECAU SE 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 POWER S OF THE TRIBUNAL ARE NO DOUBT LIMITED. ITS AREA OF JURISDICTION IS CLEARLY DEFINED BUT, WITHIN THE BOU NDS OF ITS JURISDICTION, IT HAS ALL THE POWERS EXPRESSLY A ND IMPLIEDLY GRANTED. THE IMPLIED GRANT IS, OF 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 REASONABLY NECESSARY TO MAKE THE GRANT EFFECTIVE. 8. REFERENCE MAY FURTHER BE MADE TO THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF PARA LAMINATES (P.) LTD.'S CASE (SUPRA) WHEREIN A SIMILAR PROPOSIT ION HAS BEEN ENUNCIATED BY THE APEX COURT AND IT HAS BEEN H ELD THAT THE TRIBUNAL IS ENTITLED TO EXERCISE ALL INCID ENTAL AND ANCILLARY POWERS WHICH ARE REASONABLY NECESSARY FOR PERFORMING THE ADJUDICATIVE FUNCTIONS. APPLYING THE AFORESAID PRINCIPLES, IT CLEARLY FOLLOWS THAT IT WA S OBLIGATORY ON THE PART OF THE INCOME-TAX AUTHORITY TO EFFECT SERVICE OF NOTICE OF HEARING ON THE ASSESSEE SINCE THE SERVICE COULD NOT BE EFFECTED BY POST AT THE AD DRESS GIVEN BY THE REVENUE IN THE MEMORANDUM OF APPEAL. T HE TRIBUNAL WAS THEREFORE WELL WITHIN ITS POWERS TO DI RECT THE INCOME-TAX DEPARTMENT TO EFFECT SERVICE ON THE ASSESSEE PARTICULARLY SINCE THE DEPARTMENT, AS AN EXECUTIVE ORGANIZATION IS WELL EQUIPPED WITH THE REQUISITE STAFF STRENGTH OF NOTICE SERVER, INCOME-T AX INSPECTOR ETC. FOR THE PURPOSE OF SERVING VARIOUS STATUTORY NOTICES ON THE TAX PAYER. SINCE THE REVEN UE HAS SHOWN APATHY WITH REGARD FOR SERVING THE NOTICE S OF HEARING ON THE RESPONDENT ASSESSEE REVENUE HAS ALSO NOT MADE ANY REQUEST TO GET THE NOTICE SERVED BY ALTERNATE WAY I.E., BY WAY OF PUBLICATION ETC. WHICH IS LAID DOWN IN RULE 20 OF CPC. TRIBUNAL CAN TAKE HELP ON PROCEDURAL ASPECT AS LAID DOWN UNDER RELEVANT PROVISIONS OF THE CIVIL PROCEDURE CODE WHERE INCOME -TAX ACT AND RULE THEREUNDER ARE NOT ABLE TO MEET PARTIC ULAR SITUATION. THIS VIEW IS FORTIFIED BY RATIO LAID DOW N IN THE CASE OF M.K. MOHAMMED KUNHI (SUPRA), WHEREIN IT HAS BEEN HELD THAT TRIBUNAL HAS POWER IDENTICAL TO APPE LLATE COURT UNDER C.P.C. WE ARE OF THE VIEW THAT ONCE REV ENUE IS NOT ABLE TO GET EXACT ADDRESS OF ASSESSEE, HOW I T WILL FOLLOW THE SAME, IN CASE MATTER IS DECIDED IN FAVOU R OF REVENUE. IN THE FACTS AND CIRCUMSTANCES OF THE CASE , WE HAVE NO ALTERNATIVE BUT TO DISMISS THE APPEALS. HOW EVER, REVENUE IS AT LIBERTY TO GET THIS ORDER RECALLED TO DECIDE ON MERIT IN CASE ASSESSEE IS TRACED BY THE REVENUE WITHIN REASONABLE TIME. THIS VIEW IS FORTIFIED BY T HE DECISION OF AHMEDABAD BENCH A OF THE TRIBUNAL IN THE CASE OF DY. CIT VS. ADITYA ORGANIZERS (P) LTD. (200 4) 91 ITD 342 (AHD). 9. IN THE RESULT, THE APPEALS OF THE REVENUE ARE DISMISSED. NOW, LEARNED AUTHORIZED REPRESENTATIVE HAS SUBMITT ED THAT THE ASSESSEE HAS BEEN SERVED WITH A NOTICE OF HEARING ON 13.11.2013, SO IN THE INTEREST OF JUSTICE, WE RESTO RE THIS APPEAL TO ORIGINAL NUMBER AND THE REGISTRY IS DIREC TED TO FIX THE MATTER ON 18.02.2014. 3. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON 6 TH DECEMBER 2013. SD/- SD/- (G.S.PANNU) (SHAILENDRA KUMAR YAD AV) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED 6 TH DECEMBER 2013 GCVSR COPY TO:- 1) ASSESSEE 2) DEPARTMENT, 3) THE CIT(A)-V, PUNE 4) THE CIT-V, PUNE 5) THE DR, B BENCH, I.T.A.T., PUNE. 6) GUARD FILE BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY, ITAT PUNE BENCHES, PUNE.