SURAJ MAL JAIN, Kota V. DCIT, Jaipur

MA 3/JPR/2014

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6068 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 7 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-01-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 09-06-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: MAHENDRA GARGIEYAADV
• Keywords: Opportunity of being heard; Principle of natural justice; Bonafide belief; Period of limitation; Question of law; Reasonable cause; Right to appeal; Time period of passing order

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH FOT; IKWY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ MA NO.03, 04 & 05/JP/2014 (ARISING OUT OF ITA NO. 1335, 1336 & 1337/JP/2010) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2006-07, 2007-08 & 2008-09 SHRI SURAJMAL JAIN, NEAR GIRLS SCHOOL, RAMGANJ MANDI, KOTA CUKE VS. DCIT CENTRAL CIRCLE-03 JAIPUR LFKK;H YS[KK LA -@THVKBZVKJ LA -@ PAN/GIR NO.: ABNPJ 0151 B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI MAHENDRA GARGIEYA(ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI R. A. VERMA ( ADDL.CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 24/11/2017 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 18/01/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS PRESENT MISCELLANEOUS APPLICATIONS HAVE BEEN FILED BY THE ASSESSEE, LATE SURAJMAL JAIN THROUGH HIS LEGAL HEIRS SMT. NIRMALA JAIN, RAJENDRA KUMAR JAIN AND MANOJ KUMAR JAIN AGAINST THE ORDER PASSED BY THE CO-ORDINATE BENCH DATED 16.09.2011 FOR AYS 2006-07, 2007-08 AND 2008-09. 2. IN THEIR MISC. PETITION FILED WITH THE REGISTRY ON 22.04.2014, THEY HAVE STATED AS UNDER:- 2. THAT HONBLE ITAT IN PARA 2.3 AT PAGE 2 & ONWARDS HAS M.A. NO. 3,4,5/JP/2014 SHRI SURAJ MAL JAIN VS. ACIT 2 MENTIONED THAT THE APPEAL WAS FIXED ON CERTAIN DATES AND THE RECORD SHOWS THAT THE FIXATION NOTICE HAS BEEN SERVED UPON THE ASSESSEE, THE ACKNOWLEDGEMENT OF WHICH IS AVAILABLE ON RECORD HOWEVER, NONE APPEARED. THEREFORE, HONBLE ITAT DECIDED THE APPEAL AFTER HEARING THE REVENUE ALONE AND REVERSED THE ORDER OF THE LD. CIT(A) BY CONFIRMING THE ADDITION MADE. 3. IN THIS CONNECTION, IT IS VERY HUMBLY SUBMITTED THAT THE AO MADE HUGE ADDITIONS WHICH WERE SUBSTANTIALLY REDUCED BY THE ID. CIT(A) IN THE FIRST APPEAL. SINCE THERE WAS A STRONG GROUND AVAILABLE ON WHICH THE ID. CIT(A) GRANTED RELIEF HENCE, IT WAS NEVER EXPECTED THAT THE DEPARTMENT MIGHT BE GOING IN SECOND APPEAL BEFORE THE HONBLE ITAT. IT APPEARS THAT THEREAFTER, THE DEPARTMENT HAS CHALLENGED THIS ORDER IN SECOND APPEAL. UNFORTUNATELY HOWEVER, THE APPEAL MEMO OR ANY OTHER INFORMATION, TO THE BEST OF HIS KNOWLEDGE AND BELIEF, WAS NEVER SERVED UPON THE ASSESSEE OR ANYBODY ELSE AUTHORIZED FOR THIS PURPOSE. EVEN THEREAFTER, THE ASSESSEE NEVER RECEIVED ANY NOTICE ON ANY OCCASION. NEITHER THE ASSESSEE NOR ANYBODY ELSE AUTHORIZED FOR THIS PURPOSE RECEIVED ANY INTIMATION. EVEN THE ITAT ORDER WAS NOT RECEIVED BY THE ASSESSEE BUT THE ASSESSEE CAME TO KNOW OF THE SAME LATER ON. IT IS FURTHER SUBMITTED THAT THE ASSESSEE-RESPONDENT HAD BEEN MADE TO SUFFER BECAUSE NO OPPORTUNITY OF BEING HEARD WAS GIVEN TO THE ASSESSEE AND THUS, ITS VALUABLE RIGHT HAS BEEN PREJUDICED. IT IS NOT THE CASE THAT THE HEARING WAS FIXED ON VARIOUS OCCASIONS AND THE ASSESSEE- RESPONDENT ACTED DELIBERATELY IN DEFIANCE. THUS, THE SUBJECTED ORDER WAS PASSED IN GROSS VIOLATION OF PRINCIPLE OF NATURAL JUSTICE AND THE ASSESSEE-RESPONDENT HAS BEEN DEPRIVED OF HIS VALUABLE RIGHTS OF MAKING APPEARANCE AND DEFENDING HIS CASE BEFORE THE HONBLE ITAT. THERE WAS M.A. NO. 3,4,5/JP/2014 SHRI SURAJ MAL JAIN VS. ACIT 3 NO DELIBERATE OR INTENTIONAL ATTEMPT ON THE PART OF ASSESSEE-RESPONDENT TO AVOID HEARING NOR THERE WAS ANY ADVANTAGE TO THE ASSESSEE IN REMAINING ABSENT AT THE TIME OF HEARING. HENCE, THERE EXISTED A SUFFICIENT CAUSE BEHIND THE NON APPEARANCE OF THE ASSESSEE- RESPONDENT. 4. UNDER THESE CIRCUMSTANCES, IT IS THEREFORE, HUMBLY PRAYED THAT THE CAPTIONED APPEAL MAY KINDLY BE RESTORED TO ITS ORIGINAL NUMBER UNDER PROVISO TO RULE 25 PROVISO OF THE ITAT RULES, 1962. 5. THAT THE ASSESSEE SHRI SURAJMAL JAIN HAS EXPIRED RECENTLY ON DATED 07.03.2014 AND THEREFORE, NOW THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE LEGAL HEIRS SMT. NIRMALA JAIN, WIFE AND RAJENDRA KUMAR JAIN & MANOJ KUMAR JAIN, SONS OF THE DECEASED ASSESSEE. 6. THAT AFFIDAVIT OF THE LEGAL HEIRS SMT. NIRMALA JAIN, WIFE AND RAJENDRA KUMAR JAIN & MANOJ KUMAR JAIN, SONS, WHO ARE FULLY CONVERSANT WITH THE FACTS OF THE CASE, IS ENCLOSED HEREWITH IS ENCLOSED HEREWITH AND MARKED AS ANNEXURE-2. 3. DURING THE COURSE OF HEARING, THE LD. AR SUBMITTED THAT AFTER FILING THE ABOVE MAS, THEY HAVE CARRIED OUT AN OFFICIAL INSPECTION OF THE RECORD OF THE HONBLE ITAT ON 23.04.2015, SO AS TO GATHER CORRECT FACTS AND OUR SUBMISSION IN FURTHERANCE TO THESE MAS IS AS UNDER: 1. A PERUSAL OF THE RECORD SHALL REVEAL THAT NOTICE/S HEARING WERE SENT THROUGH REGISTERED AD ONLY ON TWO OCCASIONS ONLY VIZ FIRSTLY, BEFORE 20.07.2011 WHEN SOMEBODY RECEIVED AND PUT HIS INITIAL BUT IT IS NOT ASCERTAINABLE THAT WHO RECEIVED THIS NOTICE. THEREAFTER, ANOTHER NOTICE WAS SENT BEFORE 12.09.2011 AND THE REGISTERED AD SHOWS SIGNATURE OF ONE SMT. NIRMALA BAI. ASSUMING THAT SHE IS THE WIFE OF LATE M.A. NO. 3,4,5/JP/2014 SHRI SURAJ MAL JAIN VS. ACIT 4 SHRI SURAJMAL JAIN, WE HAVE FILED AN AFFIDAVIT DATED 18.05.2015 OF SMT. NIRMALA DEVI W/O LATE SHRI SURAJMAL JAIN DULY SWORN IN VIDE LETTER OF 29 TH MAY, 2015 WHEREIN, SHE HAS AVERRED BECAUSE OF BEING OLD AGED AND SUFFERINGS SHE WAS NOT ABLE TO RECOLLECT IF ANY NOTICE AT ALL WAS RECEIVED BY HER OR NOT BUT AT THE RELEVANT POINT OF TIME HER HUSBAND WAS TEMPORARILY RESIDING WITH HIS ELDER SON SHRI RAJENDRA KUMAR JAIN AT AGRA AND SHE WAS NOT ABLE TO INFORM HIS HUSBAND EVEN ASSUMING SOME NOTICE SHE MIGHT HAVE RECEIVED. NOTABLY THERE APPEARS NO EVIDENCE OF SERVICE OF NOTICE UPON THE LATE ASSESSEE, IN ANY CASE. 2. FURTHER A PERUSAL OF THE RECORD SHALL REVEAL THAT IT IS NOT A CASE WHERE VARIOUS OPPORTUNITIES WERE GRANTED TO THE RESPONDENT WHO, DELIBERATELY AVOIDED THE RECEIPT THEREOF OR TO PRESENT ITSELF FOR HEARING, ITS CONDUCT WAS NOT CONTUMACIOUS. 3. THE RECEIPT OF THE NOTICE/S IS OTHERWISE APPEARS TO BE DOUBTFUL IN AS MUCH AS THE CORRECT AND COMPLETE ADDRESS IS SHRI SURAJMAL JAIN, NEAR GIRLS SCHOOL, BEHIND SHWETAMBAR JAIN TEMPLE , RAMGANJ MANDI, KOTA HOWEVER, THE ADDRESS SHOWN IN THE ITAT ORDER IS SIMPLY SHRI SURAJMAL JAIN, NEAR GIRLS SCHOOL, RAMGANJ MANDI, KOTA. THEREFORE, THERE ARE ALL THE CHANCES OF NO SERVICE AT ALL OR AN IMPROPER SERVICE OF THE NOTICE. LASTLY, IN ANY CASE, THE FACTS REMAIN THAT AFTER DELETION OF A SUBSTANTIAL AMOUNT BY THE LD. CIT(A), THE ASSESSEE COULD HAVE NEVER VENTURED TO BE ABSENT BEFORE THE HONBLE ITAT AND WHEN THE REVENUE HAS CHALLENGED SUCH DELETION. HE WAS NOT GOING TO GAIN ANY ADVANTAGE BY KEEPING HIMSELF ABSENT. HENCE, IN THE LARGER INTEREST OF JUSTICE AND TO DO A SUBSTANTIAL JUSTICE TO THE HUMBLE APPLICANT RESPONDENT-ASSESSEE THE SUBJECTED ITAT ORDER KINDLY BE RECALLED AND BE RESTORED TO ITS M.A. NO. 3,4,5/JP/2014 SHRI SURAJ MAL JAIN VS. ACIT 5 ORIGINAL ITA NOS AND OBLIGE. 4. SUPPORTING CASE LAWS: 4.1 IN HONDA SIEL PRODUCT LTD. V/S CIT (2007) 295 ITR 466 (SC), WHEREIN IT WAS HELD THAT WHEN PREJUDICE RESULT FROM AN ORDER ATTRIBUTABLE TO THE TRIBUNALS MISTAKE, ERROR OR OMISSION, THEN IT IS THE DUTY OF THE TRIBUNAL TO SET IT RIGHT. ATONEMENT TO THE WRONG PARTY BY THE COURT OR TRIBUNAL FOR THE WRONG COMMITTED BY IT HAS NOTHING TO DO WITH THE CONCEPT OF INHERENT POWER REVIEW. IN THE PRESENT CASE, THE TRIBUNAL WAS JUSTIFIED IN EXERCISING ITS POWER UNDER SEC.254(2)WHEN IT WAS POINTED OUT TO THE TRIBUNAL THAT THE DECISION OF THE CO-ORDINATE BENCH WAS PLACED BEFORE THE TRIBUNAL WHEN THE ORIGINAL ORDER CAME TO BE PASSED BUT IT HAD COMMITTED A MISTAKE IN NOT CONSIDERING THE MATERIAL WHICH WAS ALREADY ON RECORD. THE TRIBUNAL HAS ACKNOWLEDGED ITS MISTAKE, IT HAS ACCORDINGLY RECTIFIED ITS ORDER. IN THAT CASE, A DECISION BY A COORDINATE BENCH THOUGH CITED YET HOWEVER, WAS NOT CONSIDERED BY THE ITAT AND THE MA FILED BY THE ASSESSEE, WAS ACCEPTED. UNDER THIS BACKGROUND, THE RECTIFICATION DONE BY THE ITAT WAS CONFIRMED. 4.2 IN CASE OF SERVICE ON WIFE THERE IS DIRECT DECISION IN CASE OF SOHAN LAI GUPTA VS. ITO (2004) 2 SOT 0073 (AGRA TRIB) HELD THAT: NOTICE SERVICE VALIDITYNOTICE SERVED ON WIFE OF ASSESSEE WHO FAILED TO HAND OVER THE SAME TO THE ASSESSEE WAS SERVED ON UNAUTHORISED PERSON, HENCE SERVICE WAS NOT PROPERORDER OF TRIBUNAL DISMISSING THE APPEAL IN DEFAULT NEEDED TO BE RECALLED M.A. NO. 3,4,5/JP/2014 SHRI SURAJ MAL JAIN VS. ACIT 6 4.3 IN CASE OF SHRI PRITAM SINGH OBEROI VS. ITO IN M.A.NO.12 (LUC.)/2010 WHERE THE ASSESSEE BEING OUT OF STATION INSTRUCTED HIS WIFE TO DELIVER NOTICE TO HIS COUNSEL WHICH HOWEVER, COULD BE GIVEN LATE, THE ORDER PASSED WAS RECALLED AS THERE WAS A REASONABLE CAUSE. 4.4 IN CIT VS. HEMLA HOZIERY DYEING & PRINTING MILLS (P) LTD. (2006) 286 ITR 646 (DEL.) IT WAS HELD THAT: APPEAL (TRIBUNAL)RECALLING OF EX PARTE ORDERREASONABLE CAUSE FOR NON- APPEARANCE AT THE HEARINGTRIBUNAL HAS RECORDED A CLEAR FINDING OF FACT THAT THE NOTICE REGARDING THE HEARING OF THE APPEAL WAS NOT PROPERLY SERVED UPON THE APPELLANT IN ONE APPEAL AND THE RESPONDENT IN THE OTHERTHEREFORE, NON-APPEARANCE OF THE APPELLANT-ASSESSEE IN THE APPEAL FILED BY IT AND IN THE CROSS- APPEAL FILED BY THE REVENUE WAS FOR A SUFFICIENT CAUSE ACCORDINGLY, TRIBUNAL WAS JUSTIFIED IN RECALLING THE ORDER PASSED BY ITNO SUBSTANTIAL QUESTION OF LAW ARISES 4.5 IN RAJESH RAJMANI SINGH VS. ITO (2013) 35 CCH 334 (MUM TRIB) HELD THAT: APPEAL(APPELLATE TRIBUNAL)RECALLING OF ORDEREX-PARTE ORDER PASSED AGAINST ASSESSEE ON ACCOUNT OF NON-APPEARANCE OF COUNSELASSESSEE UNDER BONAFIDE BELIEF THAT MATTER WILL BE ATTENDED PROPERLY BY HIS COUNSEL-REASONABLE CAUSE SHOWN FOR NON-APPEARANCE EX-PARTE ORDER RECALLEDAPPEAL FILED BY ASSESSEE IS ALLOWED. 4.6 IN THE CASE OF SANTOSH SINGLA VS. ITO (2012) 77 DTR 438 (DEL.), THE HON'BLE DELHI HIGH COURT EVEN IN A CASE WHERE APPLICATION U/S 254(2) WAS FILED AFTER FOUR YEARS, DIRECTED THE TRIBUNAL TO EXAMINE THE CORRECTNESS OF ASSESSEE'S CONTENTION OF NONSERVICE/ NON AWARENESS OF M.A. NO. 3,4,5/JP/2014 SHRI SURAJ MAL JAIN VS. ACIT 7 THE DATE OF HEARING AND TO PASS AN ORDER AFRESH, WHICH GOES TO SHOW THAT A PROPER AND VALID SERVICE OF NOTICE OF HEARING TO THE PARTIES HAS BEEN SEEN VERY SERIOUSLY. 4.7 IN THE CASE OF CIT VS. P.V.KUMAR (2005) 199 CTR 429 (DEL.), THE ITAT ORDER WAS SET-ASIDE TO BE DECIDED AFRESH EVEN WHEN THE RECIPIENT HAD LEFT THE PLACE WITHOUT NOTIFYING THE ITAT. 4.8 FURTHER IN THE CASE OF M/S RAJESWARI HOSPITAL VS. ITO IN I.T.A. NO.202 /COCH/2014) DESPITE THE CLOSURE OF THE FIRM AND THE PARTNERS HAVING SHIFTED, IN ABSENCE OF SERVICE OF NOTICE THE ITAT ORDER PASSED ON MERIT WAS RECALLED THROUGH MA TO BE DECIDED AFRESH. 4.9 SUFFICIENT CAUSE MUST RECEIVE A LIBERAL CONSTRUCTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE, AS HELD IN DINBANDHU V/S JADUMONI AIR 1954 SC 411. 4.10. RECENTLY, THE DECISION IN CASE OF FIVE STAR HEALTH CARE (P) LTD. VS. AO (2012) 69 DTR 170/145 TTJ 537 (DEL) (TM) HAS BEEN RENDERED WHICH IS DIRECTLY APPLICABLE. 4.11 CIT V/S RAMESH CHAND MODI (2001) 249 ITR 0323 (RAJ). 4. THE LD. DR IS HEARD WHO HAS OBJECTED TO THE MISCELLANEOUS APPLICATIONS SO FILED AFTER A CONSIDERABLE LONG PERIOD OF TIME. IT WAS FURTHER SUBMITTED THAT IN THE ORDER OF THE TRIBUNAL, IT IS VERY CLEARLY STATED THAT THE NOTICES SCHEDULING THE DATE OF HEARING HAVE BEEN DULY SERVED UPON THE ASSESSEE AND THE ACKNOWLEDGEMENTS ARE AVAILABLE ON RECORD. IT WAS ACCORDINGLY SUBMITTED THAT THE CONTENTION OF THE LD. AR M.A. NO. 3,4,5/JP/2014 SHRI SURAJ MAL JAIN VS. ACIT 8 THAT THE NOTICES WERE EITHER SEND TO WRONG ADDRESS OR NOT DULY SERVED ON THE ASSESSEE IS NOT CORRECT. IT WAS FURTHER SUBMITTED THAT EVEN THOUGH THE ORDER HAS BEEN PASSED BY THE CO-ORDINATE BENCH EX-PARTE QUA THE ASSESSEE, AT THE SAME TIME, THE ORDER HAS BEEN PASSED ON MERIT AFTER TAKING INTO CONSIDERATION ALL RELEVANT FACTS AND CIRCUMSTANCES OF THE CASE. IT WAS ACCORDINGLY SUBMITTED THAT THE MISCELLANEOUS APPLICATIONS SO FILED BY THE ASSESSEE SHOULD NOT BE ENTERTAINED. 5. WE HAVE HEARD BOTH THE PARTIES AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. FIRSTLY, THE CONTENTION OF THE ASSESSEE THAT SINCE THERE WAS STRONG GROUND AVAILABLE ON WHICH THE LD. CIT(A) GRANTED RELIEF, IT WAS NEVER EXPECTED BY THE ASSESSEE THAT THE DEPARTMENT WOULD BE GOING IN SECOND APPEAL BEFORE THE TRIBUNAL CANNOT BE ACCEPTED. MERE EXPECTATION THAT THE REVENUE, WHICH HAS AN EQUAL RIGHT TO APPEAL AGAINST THE ORDER OF THE LD. CIT(A), WILL NOT GO IN FURTHER APPEAL BEFORE THE TRIBUNAL CANNOT BE A BASIS FOR NON APPEARANCE ONCE THE APPEAL BY THE REVENUE HAS BEEN FILED, THE MATTER IS LISTED FOR HEARING AND NOTICE STATING THE SCHEDULED DATE OF HEARING SENT AND DULY SERVED ON THE ASSESSEE TO ALLOW HIM AN OPPORTUNITY TO REPRESENT HIS MATTER. IT IS INCUMBENT UPON THE ASSESSEE TO REPRESENT HIS CASE THROUGH ITS AUTHORIZED REPRESENTATIVE. 6. REGARDING THE SECOND CONTENTION OF THE ASSESSEE THAT THE APPEAL MEMO OR ANY OTHER INFORMATION WAS NEVER SERVED UPON THE ASSESSEE OR ANYBODY ELSE AUTHORIZED BY HIM AND NO NOTICE ON ANY OCCASION HAS BEEN RECEIVED EITHER BY THE ASSESSEE OR ANYBODY ELSE AUTHORIZED IN THIS BEHALF AND EVEN THE ORDER OF THE ITAT WAS NOT RECEIVED BY THE ASSESSEE. IN THIS REGARD, FIRSTLY, THE ORDER PASSED BY THE CO-ORDINATE M.A. NO. 3,4,5/JP/2014 SHRI SURAJ MAL JAIN VS. ACIT 9 BENCH AT PARA 2.3 WHICH IS REPRODUCED BELOW IS SELF SPEAKING AND DOES NOT REQUIRE ANY FURTHER ELABORATION. 2.3 THE APPEALS HAVE BEEN FIXED ON 09.02.2011, 26.05.2011, 20.07.2011 AND 12.09.2011. THE RECORDS SHOW THAT THE FIXATION NOTICE HAS BEEN SERVED UPON AND THE ACKNOWLEDGEMENTS ARE AVAILABLE ON RECORD. WE ARE THEREFORE, DECIDING THE APPEALS AFTER HEARING THE LD. DR AND PERUSING THE RECORDS. 7. FURTHER, FROM PERUSAL OF THE ORDER SHEET AND MATERIAL AVAILABLE ON RECORD, IT IS OBSERVED THAT THE HEARING IN THE MATTER WAS FIRST LISTED FOR HEARING ON 09.12.2011 AND THE NOTICE WAS SENT ON 17.01.2011 THROUGH REGISTERED AD. SUBSEQUENTLY ON 09.12.2011, THE MATTER WAS ADJOURNED AND LISTED FOR FRESH HEARING FOR 01.04.2011 AND THE NOTICE WAS SENT THROUGH REGISTERED AD ON 23.02.2011. THEREAFTER, ANOTHER NOTICE WAS SENT ON 25.04.2011 SCHEDULING THE HEARING FOR 26.05.2011. THEREAFTER ANOTHER NOTICE WAS SENT ON 01.06.2011 SCHEDULING THE HEARING FOR 20.07.2011 AND FINALLY, NOTICE WAS ISSUED ON 25.07.2011 FIXING THE HEARING ON 12.09.2011 WHERE THE MATTER WAS FINALLY LISTED AND HEARD. ALL THE NOTICES HAVE BEEN ISSUED THROUGH REGISTERED AD AND THE ACKNOWLEDGEMENTS IN RESPECT OF NOTICES DATED 20.07.2011 AND 12.09.2011 ARE AVAILABLE ON RECORD. 8. ALL THESE NOTICES HAVE BEEN SENT AT THE ADDRESS PROVIDED TO THE REGISTRY OF THE TRIBUNAL AT THE TIME OF FILING OF THE APPEAL AND THE FACT THAT THERE IS NO RETURN OF ANY OF THESE NOTICES AS REMAINING UNSERVED BY THE POSTAL AUTHORITIES AND IN RESPECT OF THE TWO OF THE NOTICES, AS NOTED ABOVE, REGISTERED AD IS ON RECORD SHOWS BEYOND ANY DOUBT THAT THE NOTICE HAVE BEEN DULY SERVED ON THE ASSESSEE AT THE ADDRESS SO M.A. NO. 3,4,5/JP/2014 SHRI SURAJ MAL JAIN VS. ACIT 10 PROVIDED TO THE TRIBUNAL. HERE, IT IS RELEVANT TO NOTE THAT THE ADDRESS OF THE ASSESSEE AVAILABLE ON RECORD AT WHICH NOTICES HAVE BEEN SENT AND EVEN THE ORDER HAS BEEN SENT IS SHRI SURAJ MAL JAIN, NEAR GIRLS SCHOOL, RAMGANJ MANDI, KOTA AND IN THE AFFIDAVIT OF WIFE OF THE ASSESSEE FILED WITH THE PRESENT MISC. PETITION, EXACTLY SAME ADDRESS HAS BEEN MENTIONED. THEREFORE, THERE CANNOT BE ANY DISPUTE IN TERMS OF INCORRECT OR INCOMPLETE ADDRESS AT WHICH THE NOTICES HAVE BEEN SENT. 9. UNLIKE THE MISCELLANEOUS PETITION WHERE THE ASSESSEE HAS CONTENDED THAT NEITHER THE ASSESSEE NOR ANYBODY ELSE AUTHORIZED, IN THIS BEHALF RECEIVED ANY NOTICE ON ANY OCCASION SCHEDULING THE HEARING IN THE MATTER BEFORE THE TRIBUNAL, THE LD. AR HAS STATED IN HIS WRITTEN SUBMISSION THAT THE NOTICE SENT BY THE REGISTRY OF THE TRIBUNAL SCHEDULING THE HEARING FOR 12.09.2011, THE REGISTERED AD SHOWS SIGNATURE OF ONE SMT. NIRMALA BAI. THIS AGAIN PROVES THAT THE NOTICE WAS DULY SERVED AND SMT NIRMALA BAI/DEVI WHO IS THE WIFE OF THE ASSESSEE RECEIVED THE SAME ON HIS BEHALF. THEREFORE, SERVICE OF PROPER NOTICE ON THE ASSESSEE SCHEDULING THE DATE OF HEARING CANNOT BE DISPUTED. 10. WE NOW REFER TO THE AVERMENTS MADE IN THE AFFIDAVIT OF SMT. NIRMALA DEVI, THE WIFE OF THE ASSESSEE. SHE HAS STATED IN HER AFFIDAVIT THAT BECAUSE OF HER OLD AGE, SHE WAS NOT ABLE TO RECOLLECT IF ANY NOTICE WAS RECEIVED BY HER OR NOT. BUT AT THE RELEVANT TIME, HER HUSBAND WAS TEMPORARILY RESIDING WITH HIS ELDER SON AT AGRA AND SHE WAS NOT ABLE TO INFORM HER HUSBAND EVEN ASSUMING SOME NOTICE SHE MIGHT HAVE RECEIVED. M.A. NO. 3,4,5/JP/2014 SHRI SURAJ MAL JAIN VS. ACIT 11 11. IN THE ABOVE FACTUAL MATRIX, IT IS THEREFORE CLEAR THAT THE NOTICES HAVE BEEN ISSUED TO THE ASSESSEE FROM TIME TO TIME INFORMING HIM ABOUT THE SCHEDULED DATE OF HEARING. NONE OF THE NOTICES HAVE BEEN RETURNED UNSERVED BY THE POSTAL AUTHORITIES. IN RESPECT OF TWO OF THE NOTICES, REGISTERED AD IS ON RECORD AND ON ONE SUCH REGISTERED AD, SIGNATURE OF WIFE OF THE ASSESSEE IS ALSO MENTIONED AS ALSO ADMITTED BY THE ASSESSEE. IN HER AFFIDAVIT, WIFE OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE WAS NOT STAYING AT THE GIVEN ADDRESS AND WAS STAYING WITH THEIR SON AT AGRA AND BECAUSE OF HER OLD AGE AND HEALTH PROBLEMS, SHE FAILED TO INFORM HER HUSBAND ABOUT THE RECEIPT OF SUCH NOTICE AND THERE IS NOTHING DELIBERATELY OR CONSCIOUSLY DONE BY HER IN TERMS OF NOT INFORMING HER HUSBAND. THERE IS NOTHING ON RECORD TO CORROBORATE THE AVERMENTS SO MADE IN HER AFFIDAVIT IN TERMS OF THE ASSESSEE NOT STAYING AT THE GIVEN ADDRESS OR STAYING WITH THEIR ELDER SON AT AGRA. THERE IS NO AFFIDAVIT FILED BY THE ELDER SON SHRI RAJENDRA KUMAR JAIN WHO ALSO HAPPENS TO BE THE LEGAL HEIR BROUGHT ON RECORD AND SIGNATORY TO THE PRESENT MISC. APPLICATIONS CONFIRMING THE SAID FACT. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND BASED ON MATERIAL AVAILABLE ON RECORD, THE NOTICES SCHEDULING THE DATE OF HEARING HAVE BEEN DULY SERVED ON THE ASSESSEE. WHERE THE ASSESSEE CHOOSES TO REMAIN SILENT BY WAY OF EITHER NOT ATTENDING TO THE PROCEEDINGS OR AUTHORIZING ANY PERSON TO ATTEND THE PROCEEDINGS ON HIS BEHALF, THE TRIBUNAL CANNOT BE EXPECTED TO WAIT FOR ETERNITY BEFORE IT DECIDES TO TAKE UP THE MATTER ESPECIALLY IN LIGHT OF HUGE PENDENCY OF CASES. NO DOUBT THE ASSESSEE HAS A RIGHT TO BE HEARD BUT THE SAME IS NOT AN ABSOLUTE RIGHT AND IT COMES WITH ADDED RESPONSIBILITIES IN TERMS OF TIMELY ATTENDING TO THE PROCEEDINGS AS SO FIXED BY THE TRIBUNAL. WHERE INSPITE OF NUMBER OF OPPORTUNITIES BEING GRANTED TO HIM, THE ASSESSEE FAILED TO APPEAR AND REPRESENT ITS CASE, WE M.A. NO. 3,4,5/JP/2014 SHRI SURAJ MAL JAIN VS. ACIT 12 DONT THINK THE COORDINATE BENCH HAS ERRED IN DECIDING THE MATTER EX- PARTE QUA THE ASSESSEE. IN ANY CASE, THE COORDINATE BENCH HAS HEARD THE LD DR AND ALSO TAKEN INTO CONSIDERATION THE DECISION OF THE AO AND THE LD CIT(A) AND THEREAFTER, HAS DECIDED THE MATTER. THE DECISION OF THE COORDINATE BENCH WAS RENDERED ON MERIT OF THE CASE AND NOTHING HAS BEEN BROUGHT ON RECORD WHICH SHOWS ANY MISTAKE WHICH IS APPARENT FROM THE RECORDS. 12. FURTHER, IT IS OBSERVED THAT IN ITS MISC. PETITION, IT HAS BEEN STATED THAT EVEN THE ITAT ORDER DATED 16.09.2011 WAS NOT RECEIVED BUT THE ASSESSEE CAME TO KNOW OF THE SAME LATER ON. WHEN THE ASSESSEE ACTUALLY RECEIVED IT OR CAME TO KNOW ABOUT IT IS NOT STATED. THE ORDER OF THE TRIBUNAL WAS DISPATCHED ON 19.09.2011 AT THE GIVEN ADDRESS AND THERE IS NOTHING ON RECORD TO SHOW THAT THE SAME WAS RETURNED UNDELIVERED. FROM THE SAID DATE OF THE ORDER TO THE DAY THE ASSESSEE EXPIRED ON 7.3.2014, THERE IS AGAIN COMPLETE SILENT AS TO WHY NO ACTION WAS TAKEN BY THE ASSESSEE TO RECALL THE EX-PARTE ORDER IF HE WAS SO PREJUDICED WITH THE SAID ORDER. THEN, ON 22.04.2014, A MISC APPLICATION IS FILED BY THE LEGAL HEIRS WITH THE REGISTRY REQUESTING FOR RECALL OF THE ORDER PASSED BY THE COORDINATE BENCH. THE REASON WHY WE ARE STATING ALL THESE FACTS IS THAT THE ASSESSEE CANNOT PLEAD HIS CASE OF REASONABLE CAUSE FOR NOT ATTENDING THE PROCEEDINGS WHEN SUBSEQUENT TO CLOSURE OF THE PROCEEDINGS AND PASSING OF THE ORDER, HE AGAIN REMAINED SILENT AND THEN TOWARDS THE FAG END OF THE LIMITATION PERIOD, HIS LEGAL HEIRS SUDDENLY REALIZES THAT THERE IS A PREJUDICE CAUSED TO THEM BY PASSING AN EX-PARTE ORDER AND MOVES THE PRESENT MISC. PETITION. M.A. NO. 3,4,5/JP/2014 SHRI SURAJ MAL JAIN VS. ACIT 13 13. IN LIGHT OF ABOVE DISCUSSIONS AND TAKING INTO CONSIDERATION THE ENTIRETY OF FACTS AND CIRCUMSTANCES OF THE CASE, WE DONOT BELIEVE THERE IS ANY BASIS FOR RECALL OF THE ORDER PASSED ON MERIT BY THE COORDINATE BENCH FOR THE IMPUNGED ASSESSMENT YEARS. IN THE RESULT, ALL THE MISC. PETITIONS SO FILED FOR THE RESPECTIVE ASSESSMENT YEARS ARE HEREBY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18/01/2018. SD/- SD/- FOT; IKWY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 18/01/2018. * GANESH KR VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI SURAJMAL JAIN, KOTA 2. IZR;FKHZ@ THE RESPONDENT- DCIT, JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {M.A. NO. 03, 04 & 05/JP/2014} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR