Natarajan Neelamegan, CHENNAI V. ACIT, CHENNAI

MA 220/CHNY/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6704 (ITAT-CHENNAI)
• Duration Of Justice: 10 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 27-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Assessee Lawyers: N DEVANATHAN

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI ... , . !' , # $ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER %% / M.P. NO.220/CHNY/2017 (IN I.T.A. NO.3374/MDS/2016) & '& / ASSESSMENT YEAR : 2012-13 SHRI NATARAJAN NEELAMEGAN, NO.3, KARUNANITHI ROAD, SHOLINGANALLUR, CHENNAI - 600 119. PAN : AHXPN 4051 E V. THE ASSISTANT COMMISSIONER OF INCOME TAX, NON-CORPORATE CIRCLE 15, CHENNAI. ()*& /PETITIONER) ()+*,/ RESPONDENT) )*& . / /PETITIONER BY : SH. N. DEVANATHAN, ADVOCATE )+*, . / / RESPONDENT BY : MS. S. VIJAYAPRABHA, JCIT 0 . 1# / DATE OF HEARING : 08.06.2018 2!' . 1# / DATE OF PRONOUNCEMENT : 14.06.2018 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THE ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS PETITION PRAYING FOR RECALL OF THE ORDER OF THIS TRIBUNAL DA TED 31.05.2017. 2. SH. N. DEVANATHAN, THE LD.COUNSEL FOR THE ASSESS EE, SUBMITTED THAT THE NOTICE SAID TO BE ISSUED BY THIS TRIBUNAL WAS NOT RECEIVED BY THE ASSESSEE. THEREFORE, ACCORDING TO THE LD. COUNSEL, 2 M.P. NO.220/CHNY/17 IN VIEW OF PROVISO TO RULE 25 OF THE INCOME TAX (AP PELLATE TRIBUNAL) RULES, 1963, THE ORDER OF THIS TRIBUNAL DATED 31.05 .2017 MAY BE RECALLED AND AN OPPORTUNITY MAY BE GIVEN TO THE ASS ESSEE TO ARGUE HIS CASE ON MERIT. 3. ON THE CONTRARY, MS. S. VIJAYAPRABHA, THE LD. DE PARTMENTAL REPRESENTATIVE, SUBMITTED THAT THIS TRIBUNAL ISSUED THE NOTICE. IT APPEARS THAT EVEN AFTER INTIMATION, THE ASSESSEE HA S NOT CLAIMED THE NOTICE FROM THE POSTAL AUTHORITIES. THEREFORE, ACCORDING TO THE LD. D.R., THIS TRIBUNAL DISPOSED OF THE APPEAL ON M ERIT AFTER HEARING THE LD. D.R. HENCE, ACCORDING TO THE LD. D.R., THE RE IS NO ERROR IN THE ORDER OF THIS TRIBUNAL. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. A PERUSAL OF THE ORDER OF THIS TRIBUNAL DATED 31.05.2017 CLEARLY SAY S THAT THE POSTAL AUTHORITIES RETURNED THE NOTICE ISSUED BY THE TRIBU NAL BY RPAD WITH AN ENDORSEMENT INTIMATION NOT CLAIMED. THE ASSES SEE NOW CLAIMS THAT THE NOTICE WAS NOT SERVED ON HIM. 5. WE HAVE CAREFULLY GONE THROUGH THE PROVISIONS OF RULE 25 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963, WH ICH READS AS FOLLOWS:- 3 M.P. NO.220/CHNY/17 WHERE, ON THE DAY FIXED FOR HEARING, OR ANY OTHER DAY TO WHICH THE HEARING MAY BE ADJOURNED, THE APPE LLANT APPEARS AND THE RESPONDENT DOES NOT APPEAR IN PERSO N OR THROUGH AN AUTHORISED REPRESENTATIVE WHEN THE APPEA L IS CALLED ON FOR HEARING, THE TRIBUNAL MAY DISPOSE OF THE APPEAL ON MERITS AFTER HEARING THE APPELLANT. PROVIDED THAT WHERE AN APPEAL HAS BEEN DISPOSED OF AS PROVIDED ABOVE AND THE APPELLANT APPEARS AFTERWARDS AND SATISFIES THE TRIBUNAL THAT THERE WAS SUFFICIENT CA USE FOR HIS NON-APPEARANCE WHEN THE APPEAL WAS CALLED ON FO R HEARING, THE TRIBUNAL SHALL MAKE AN ORDER SETTING A SIDE THE EX-PARTE ORDER AND RESTORE THE APPEAL. 6. IN THIS CASE, THE ASSESSEE IS THE RESPONDENT. T HEREFORE, IF THE ASSESSEE SATISFIES THE TRIBUNAL THAT THERE WAS SUFFICIENT CAUSE FOR HIS NON-APPEARANCE, THE TRIBUNAL SHALL SET ASID E THE EX PARTE ORDER AND RESTORE THE APPEAL. THE ASSESSEE NOW CLA IMS THAT THE NOTICE WAS NOT RECEIVED. ADMITTEDLY, THE NOTICE WA S NOT RECEIVED. HOWEVER, THE POSTAL AUTHORITIES GAVE AN INTIMATION. INSPITE OF THE INTIMATION BY THE POSTAL AUTHORITIES, THE ASSESSEE DID NOT CLAIM THE RPAD THROUGH WHICH THE NOTICE OF HEARING WAS SENT T O THE ASSESSEE. UNDER THE COMMON LAW, WHEN THE ASSESSEE HAS NOT CLAIMED THE LETTER AFTER INTIMATION FROM THE POSTAL AUTHORITIES, THE PRESUMPTION IS THAT THE LETTER WAS RECEIVED BY THE ASSESSEE, THEREFORE, THE ASSESSEE CANNOT CLAIM THAT THE NOTIC E WAS NOT SERVED ON HIM. 4 M.P. NO.220/CHNY/17 7. BEFORE THIS TRIBUNAL, THE PROCEEDING IS UNDER TH E INCOME-TAX ACT. INCOME-TAX PROCEEDING REQUIRES QUANTIFICATION OF TAXABLE INCOME, LEVY OF TAX THEREON AND COLLECTION OF TAXES . THEREFORE, GIVING AN OPPORTUNITY TO THE ASSESSEE TO PRESENT HI S CASE BEFORE THE TRIBUNAL MAY NOT PREJUDICE THE INTERESTS OF THE REV ENUE. THEREFORE, EVEN THOUGH THERE WAS A PRESUMPTION THAT THE NOTICE WAS SERVED ON THE ASSESSEE, SINCE THE NOTICE WAS NOT CLAIMED AFTE R INTIMATION OF POSTAL AUTHORITIES, THIS TRIBUNAL IS OF THE CONSIDE RED OPINION THAT GIVING AN OPPORTUNITY TO THE ASSESSEE TO ARGUE HIS CASE ON MERIT WOULD DEFINITELY PROMOTE THE CAUSE OF JUSTICE. WE NEED TO KEEP IN MIND THAT REVENUE CANNOT KEEP SINGLE PIE OF THE ASS ESSEE UNLESS IT IS AUTHORIZED BY LAW. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ORDER OF THIS TRIBUNAL NEEDS TO BE RECALLED. ACCORDINGLY, THE ORDER OF THIS TRIBUNAL DATED 31.05 .2017 IS HEREBY RECALLED. NOW APPEAL OF THE REVENUE IN I.T.A. NO.3 374/MDS/2016 STANDS RESTORED ON THE FILE OF THIS TRIBUNAL. THE REGISTRY IS DIRECTED TO POST THE APPEAL FOR FINAL DISPOSAL ON 27.08.2018 BEFORE THE REGULAR BENCH. 8. WITH THE ABOVE OBSERVATION, THE MISCELLANEOUS PE TITION FILED BY THE ASSESSEE STANDS ALLOWED. 5 M.P. NO.220/CHNY/17 ORDER PRONOUNCED COURT ON 14 TH JUNE, 2018 AT CHENNAI. SD/- SD/- (. !' ) ( ... ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) # / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 4 /DATED, THE 14 TH JUNE, 2018. KRI. . )15% 6%'1 /COPY TO: 1. )*& / PETITIONER 2. )+*, /RESPONDENT 3. 0 71 () /CIT(A) 4. 0 71 /CIT 5. %8 )1 /DR 6. 9& : /GF.