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

MA 16/VIZ/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6484 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2002-2003
• Appeal Filed On: 31-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D S SUNDER SINGH
• Keywords: Opportunity of being heard

Judgement Text

MA 16 OF 11 K SURYANARAYANA, RJY PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI BR BASKARAN, ACCOUNTANT MEMBER M. A . NO. 16 / VIZAG/20 1 1 (ARISING OUT OF ITA NO.518/VIZAG/2005) ASSESS MENT YEAR: 2002 - 03 SRI K. SURYANARAYANA RAJAHMUNDRY VS. ITO WARD - 3 RAJAHMUNDRY (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI G.V.N. HARI, CA RESPONDENT BY: SHRI D.S. SUNDER SINGH, SR.DR ORDER PER SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER : THROUGH THIS MISCELLANEOUS APPLICATION, THE ASSESS EE MADE A REQUEST FOR RECALLING OF THE ORDER PASSED BY THE TRIBUNAL O N 9.3.2011 DISMISSING THE APPEAL OF THE ASSESSEE. THE LD. COUNSEL FOR THE AS SESSEE HAS SUBMITTED DURING THE COURSE OF HEARING OF THIS MISCELLANEOUS APPLICATION THAT THE ORDER OF THE TRIBUNAL PASSED IN THE M.A. NO.39 OF 2009 RE CALLING ITS EARLIER ORDER DATED 4.12.2009 SUBJECT TO PAYMENT OF COST OF RS.1, 000/- WAS NOT BROUGHT TO THE NOTICE OF THE ASSESSEE. THEREFORE, HE COULD NO T DEPOSIT THE COST IN THE CONCERNED ACCOUNT. THE FACTUM OF IMPOSITION OF COS T WAS BROUGHT TO THE NOTICE OF THE ASSESSEE ONLY ON 3 RD MARCH, 2011 AND ON THE SAME DAY IT WAS DEPOSITED IN THE CONCERNED ACCOUNT. THEREFORE, THE RE WAS NO DELAY IN DEPOSITION OF THE COST ON THE PART OF THE ASSESSEE AND IN THE INTEREST OF JUSTICE, THE ORDER OF THE TRIBUNAL DATED 9.3.2011 M AY BE RECALLED AND APPEAL MAY BE DISPOSED OF ON MERIT AFTER HEARING THE ASSES SEE. 2. THE LD. D.R. ON THE OTHER HAND HAS SUBMITTED THA T THE APPEAL OF THE ASSESSEE WAS DISMISSED ON ACCOUNT OF NON-APPEARANCE OF THE ASSESSEE BY THE TRIBUNAL VIDE ITS ORDER DATED 22.5.2009. THERE AFT ER THE ASSESSEE MOVED A MISCELLANEOUS APPLICATION FOR RECALLING OF THE ORDE R OF THE TRIBUNAL AND THAT MA 16 OF 11 K SURYANARAYANA, RJY PAGE 2 OF 4 MISCELLANEOUS APPLICATION NO.39 OF 2009 WAS DISPOSE D OF BY THE TRIBUNAL VIDE ITS ORDER DATED 4.12.2009 BY RECALLING ITS ORDER DA TED 22.5.2009 SUBJECT TO PAYMENT OF COST OF RS.1,000/-. THE TRIBUNAL HAS PR ONOUNCED ITS ORDER DURING THE COURSE OF HEARING WITH A CLEAR INSTRUCTION THAT NO FRESH NOTICE WOULD BE GIVEN TO THE PARTIES IN THIS REGARD AND FIXED THE H EARING OF THE APPEAL ON 27.1.2010. THE TRIBUNAL HAS ALSO MADE A SPECIFIC O BSERVATION IN HIS ORDER DATED 4.12.2009 IN ITS PARA NO.4 IN THIS REGARD. D ESPITE THE CLEAR INSTRUCTIONS OF THE TRIBUNAL, THE ASSESSEE DID NOT MAKE THE PAYM ENT OF COST AND THE HEARING OF THE APPEALS WERE FIXED ON NUMBER OF DATE S. FINALLY WHEN THE APPEAL WAS HEARD, IT WAS NOTICED BY THE TRIBUNAL TH AT THE ASSESSEE DID NOT MAKE A COMPLIANCE OF THE DEPOSIT OF THE COST AND AC CORDINGLY THE APPEAL WAS RELEASED FOR HEARING ON 3.3.2011. EVEN BEFORE THE HEARING STARTS, THE ASSESSEE DID NOT MAKE THE PAYMENT OF THE COST, THER EFORE, THE TRIBUNAL HAS RIGHTLY DISMISSED THE APPEAL OF THE ASSESSEES AFTER HAVING OBSERVED THAT THE ASSESSEE DID NOT MAKE THE PAYMENT OF THE COST, THER EFORE, THE EARLIER ORDER OF THE TRIBUNAL WAS NOT DEEMED TO HAVE BEEN RECALLED. SINCE THERE IS NO ERROR APPARENT IN THE ORDER OF THE TRIBUNAL, THE ORDER OF THE TRIBUNAL DATED 9.3.2011 CANNOT BE RECALLED. 3. HAVING HEARD THE RIVAL SUBMISSIONS AND FROM A CA REFUL PERUSAL OF THE ORDER OF THE TRIBUNAL DATED 9.3.2011 AND THE MISCEL LANEOUS APPLICATION AND THE ORDER SHEETS OF THE APPEAL AND WE FIND THAT WHI LE RECALLING THE ORDER OF THE TRIBUNAL IN MISCELLANEOUS APPLICATION NO.39 OF 2009 THE TRIBUNAL HAS PRONOUNCED ITS ORDER IN THE OPEN COURT AND FIXED TH E APPEAL FOR HEARING. IT HAS ALSO BEEN CATEGORICALLY OBSERVED IN THE ORDER O F THE TRIBUNAL THAT SINCE THE ORDER IS PRONOUNCED IN THE OPEN COURT, NO FRESH NOTICE WILL GO TO THE PARTIES. THERE AFTER, THE APPEAL WAS LISTED FOR HE ARING ON 27.1.2010, 18.3.2010, 31.5.2010, 26.7.2010, 24.8.2010, 14.9.20 10, 19.10.2010 & 9.12.2010. BUT THE COST IMPOSED UPON THE ASSESSEE WAS NOT DEPOSITED IN THE CONCERNED ACCOUNT. THE APPEAL WAS HEARD ON 9.12.20 10, THERE AFTER AT THE TIME OF DICTATION, IT WAS NOTICED THAT THE DIRECTIO N OF THE TRIBUNAL WERE NOT COMPLIED WITH. WHILE RELEASING THE FILE ON 7.1.201 1, THE REASONS FOR RELEASING THE FILE WAS MENTIONED IN THE ORDER SHEET AND THE A PPEAL WAS FIXED FOR MA 16 OF 11 K SURYANARAYANA, RJY PAGE 3 OF 4 HEARING ON 3.3.2011. EVEN UP TO THE TIME OF HEARIN G OF THE APPEAL, THE ASSESSEE HAS NOT COMPLIED THE DIRECTIONS OF THE TRI BUNAL FOR DEPOSITING THE COST. THE TRIBUNAL ACCORDINGLY HEARD THE APPEAL AN D DISPOSED OF THE SAME BY PASSING AN ORDER THAT ONCE THE EARLIER ORDER OF THE TRIBUNAL DISMISSING THE APPEAL HAS NOT BEEN RECALLED, THE TRIBUNAL HAS NO J URISDICTION TO HEAR THE APPEAL IN THE LIGHT OF EARLIER ORDER OF THE TRIBUNA L DISPOSING OF THE MAIN APPEAL. THE TRIBUNAL ACCORDINGLY DISMISSED THE APP EAL OF THE ASSESSEES. 4. NOW THROUGH THIS APPLICATION, IT IS URGED THAT T HE DIRECTION OF THE TRIBUNAL HAS BEEN COMPLIED WITH. THE COST AWARDED BY THE TRIBUNAL WAS DEPOSITED ON THE SAME DAY I.E. 3 RD MARCH, 2011 AFTER THE DATE OF HEARING BUT BEFORE THE ORDER WAS PASSED. IN THE LIGHT OF THESE FACTS, WE ARE OF THE VIEW THAT SINCE THE DIRECTIONS OF THE TRIBUNAL I.E. THE PAYMENT OF COST IMPOSED AT THE TIME OF THE RECALLING OF THE ORDER HAS BEEN COM PLIED WITH, THE ORDER OF THE TRIBUNAL DATED 4.12.2009 IS DEEMED TO HAVE BEEN REC ALLED. THOUGH FOR THE DELAY IN COMPLIANCE OF THE DIRECTIONS OF THE TRIBUN AL CAUSED, THE ASSESSEE HIMSELF IS SOLELY RESPONSIBLE DUE TO HIS NEGLIGENCE , YET THE JUSTICE SHOULD BE DONE WITH THE ASSESSEE BY DISPOSING OF HIS APPEAL O N MERIT AFTER AFFORDING A PROPER OPPORTUNITY OF BEING HEARD TO HIM. WE THERE FORE, IN ORDER TO MEET THE ENDS OF JUSTICE, HOLD THAT THE ORDER DATED 4.12.200 9 HAS BEEN RECALLED ON PAYMENT OF COST AND THE APPEAL BE DISPOSED OF ON ME RIT AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEES IN REGU LAR COURSE. 5. ACCORDINGLY, THE REGISTRY IS DIRECTED TO FIX THE APPEAL FOR HEARING ON 15.6.2011. PARTIES BE INFORMED ACCORDINGLY. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. PRONOUNCED ACCORDINGLY ON 11/5/2011 SD/ - SD/ - (B R BASKARAN) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER VG/SPS VISAKHAPATNAM, DATED: 11 TH MAY, 2011 MA 16 OF 11 K SURYANARAYANA, RJY PAGE 4 OF 4 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 CIT, RAJAHMUNDRY 4 CIT(A), RAJAHMUNDRY 5 THE DR, ITAT, VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM