Rekha Sharma, New Delhi V. ITO Ward 34 (3), New Delhi

MA 16/DEL/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6651 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-07-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 1996-1997
• Appeal Filed On: 05-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SURJANI MOHANTY

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH H DELHI ] BEFORE SHRI A. D. JAIN, JM AND SHRI K. D. RANJAN, AM MISC. APP. NO. 16 (DEL) OF 2011 [ IN I. T. APPEAL NO. 1725 (DEL) OF 2007 ]. ASSESSMENT YEAR : 199697. MS. REKHA SHARMA, THE INCOM E-TAX OFFICER, J - 672, KARTAR NAGAR, SHAHDARA, VS. W A R D : 34 (3), N E W D E L H I 110 032. N E W D E L H I. PAN / GIR NO. AAPPS 2445 J. ( APPLICANT ) ( RESPONDENT ) ASSESSEE BY : SHRI VIJAY JINDAL, C. A.; DEPARTMENT BY : MS. SURJANI MOHANTY, SR. D. R .; O R D E R. PER K. D. RANJAN, AM : THIS MISC. APPLICATION BY THE ASSESSEE HAS BEEN FIL ED AGAINST THE ORDER DATED 28TH OCTOBER, 2010 PASSED BY THE ITAT FOR ASSESSMEN T YEAR 1996-97. 2. THE ASSESSEE IN HIS MISC. APPLICATION ALONG WITH AFFIDAVIT HAS STATED THAT THE CASE WAS FIXED FOR HEARING ON 28 TH OCTOBER, 2010, BUT THE ASSESSEE HAD NOT RECEIVED A NY NOTICE FOR THIS DATE. IT HAS FURTHER BEEN STATED THAT ON INSPECTION OF THE FILE IN ITAT BY THE LD AR OF THE ASSESSEE ON 28/12/2010 IT WAS DISCOVERED THAT THE NOTICE WAS ISSUED ON 8/10/2010 THROUGH DTDC COURIER BUT NO POD IN EVIDENCE OF RECEIPT OF COURIER WAS A VAILABLE IN THE FILE OR WITH BENCH H OR WITH THE OFFICE OF DTDC COURIER COMPANY. IN VIEW OF THE ABOVE FACTS IT HAS BEEN PLEADED THAT NON- APPEARANCE ON BEHALF OF THE ASSESSEE WAS NOT WILLFU L AND THE ASSESSEE IS VERY MUCH INTERESTED IN PROSECUTING THE APPEAL. 2 MISC. APP. NO. 16 (DEL) OF 2011 3.1 WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE MAY LIKE TO MENTION THAT VIDE ORDERS DATED 28/10/2010 T HE APPEAL WAS DISMISSED EX-PARTE BY OBSERVING AS UNDER :- 2. THIS APPEAL WAS FIRST FIXED FOR HEARING FI RST ON 17 TH MAY, 2007. ON THIS DATE THE CASE WAS ADJOURNED TO 9/07/2007 AT THE REQ UEST OF THE ASSESSEE'S COUNSEL. THE CASE WAS AGAIN FIXED ON 22/08/2007 AND 8/10/200 7, BUT WAS ADJOURNED ON BOTH THE OCCASIONS AS THE BENCH DID NOT FUNCTION. THE CASE WAS AGAIN FIXED ON 6/11/2007, 7/11/2007 AND 4/12/2007, BUT WAS ADJOURN ED AT THE REQUEST OF THE COUNSEL FOR THE ASSESSEE. THE CASE WAS AGAIN FIXED ON 3/01/2008 AND WAS DECIDED EX-PARTE VIDE ORDER DATED 3/01/2008. THE ASSESSEE FILED MISCELLANEOUS APPLICATION ON 12/03/2008 BEARING M.A. NO. 106 (DEL ) OF 2008. THE ASSESSEE ALSO SOUGHT ADJOURNMENTS DURING THE COURSE OF HEARI NG OF THE MISC. APPLICATION AND FINALLY THE MISC. APPLICATION WAS HEARD EX-PART E ON 19/06/2009. AFTER THE ISSUE OF TRIBUNAL'S ORDER IN M.A. THE ASSESSEE AGAI N FILED ANOTHER MISC. APPLICATION [BEARING NO. 674 (DEL) OF 2009] ARISING OUT OF THE EARLIER MISC. APPLICATION. THIS SECOND MISC. APPLICATION WAS DISP OSED OFF ON 26/03/2010 RECALLING THE TRIBUNAL'S ORDER DATED 3/01/2008 IN I TA. NO. 1725 (DEL) OF 2007 AND FIXING THE I. T. APPEAL ON 13/05/2010, BUT THE BENCH DID NOT FUNCTION AND THE CASE WAS FINALLY ADJOURNED TO 28/10/2010. ON 28TH OCTOBER, 2010 AT THE TIME OF HEARING NEITHER THE ASSESSEE NOR ANY AUTHORIZED PER SON ATTENDED WHEN THE CASE WAS CALLED UP FOR HEARING. THIS APPEAL IS AN OLD A PPEAL FILED BEFORE THE TRIBUNAL ON 10/04/2007. FROM THE CONDUCT OF THE ASSESSEE IT APPEARS THAT THE ASSESSEE IS NOT INTERESTED IN GETTING THE APPEAL PROSECUTED. 3.2 THE ABOVE MENTIONED FACTS REFLECT THE CONDUCT O F THE ASSESSEE ABOUT SERIOUSNESS OF GETTING THE APPEAL PROSECUTED. IT IS EVIDENT THAT T HE ASSESSEE RECEIVES THE EX-PARTE ORDER AT THE GIVEN ADDRESS AND NOT THE NOTICE FIXING THE CASE FO R HEARING. THIS TIME ASSESSEE HAS TAKEN PLEA THAT ASSESSEE HAD NOT RECEIVED NOTICE AND HAS ATTEM PTED PROVE HER STAND BY INSPECTING FILE AND DRAWING CONCLUSION FROM THE FACTS THAT THE EVIDENCE FOR SERVICE OF NOTICE WAS NOT AVAILABLE ON THE RECORDS OF THE TRIBUNAL. THE NOTICE FIXING THE CAS E ON 8/10/2010 HAS NOT BEEN RECEIVED BACK UN- SERVED. THEREFORE, THE PRESUMPTION IS THAT NOTICE H AS BEEN SERVED ON THE ASSESSEE. HOWEVER, SINCE THE ASSESSEE HAD FILED AFFIDAVIT EXPLAINING T HE REASONS FOR NON-ATTENDANCE ON 28/10/2010 AS NON-SERVICE OF NOTICE OF HEARING, WE FOLLOWING THE PRINCIPLE OF AUDI ALTERAM PARTEM RECALL THE 3 MISC. APP. NO. 16 (DEL) OF 2011 ORDER FOR FRESH ADJUDICATION. THE APPEAL IS FIXED FOR HEARING ON 05TH SEPTEMBER, 2011 FOR WHICH NO NOTICE WILL BE ISSUED. BOTH THE PARTIES WERE IN FORMED IN OPEN COURT. THE REGISTRY IS DIRECTED ACCORDINGLY. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY ASSESSEE, IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON : 01 ST JULY, 2011. SD/- SD/- [ A. D. JAIN ] [ K. D. RANJAN ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 02 ND AUGUST, 2011. *MEHTA * COPY OF THE ORDER FORWARDED TO : - 1. APPLICANT. 2. RESPONDENT. 3. CIT, 4. CIT (APPEALS), 5. DR, ITAT, NEW DELHI. TRUE COPY. BY ORDER. ASSISTANT REGISTRAR, ITAT.