M/s. Prakash Trading Co., V. ITO,

MA 44/LKW/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5307 (ITAT-LUCKNOW)
• Duration Of Justice: 1 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-10-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 01-10-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 09-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRAD R
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, LUCKNOW BENCH, LUCKNOW. BEFORE SHRI H.L.KARWA, HON'BLE VICE PRESIDENT AND SHRI N.K.SAINI, ACCOUNTANT MEMBER M.A.NO.44(LUC.)/2010 (IN I.T.A.NO.308(LUC.)/2010) A.Y. : 2004-05 M/S. PRAKASH TRADING CO., VS. THE I.T.O., DIBIYAPUR, PO BIRDPUR, BASTI. SIDHARTHNAGAR. PAN ALMPP9226E (APPLICANT) (RESPONDENT) APPLICANT BY : NONE RESPONDENT BY : SHRI ALOK MITRA,D.R. O R D E R PER H.L.KARWA, VICE PRESIDENT THIS MISCELLANEOUS APPLICATION BY THE ASSESSEE A RISES OUT OF THE ORDER OF THE TRIBUNAL DATED 28.5.2010 PASSED IN I. T.A.NO.308(LUC.)/2010 RELATING TO THE ASSESSMENT YEAR 2004-05. 2. THE ASSESSEE VIDE ITS APPLICATION DATED 3.8.2 010, HAS STATED AS UNDER: THE APPELLANT HUMBLY SUBMITS AS UNDER: 1. THAT THE APPELLANT HAS FILED AN APPEAL BEFORE TH E HON'BLE TRIBUNAL AGAINST THE ORDERS OF THE LD.COMMISSIONER OF INCOME (APPEALS) FOR THE ASSESSMENT YEAR 2004-05. 2. THAT THE HEARING OF THE APPEAL WAS FIXED BY THE TRIBUNAL ON 28 TH MAY, 2010 AND A NOTICE THROUGH RPAD WAS ISSUED TO T HE 2 APPELLANT TO APPEAR ON THAT DATE. 3. THAT THE NOTICE OF HEARING COULD NOT BE RECEIVED BY THE APPELLANT BEFORE THE DATE STIPULATED IN THE NOTICE BUT IT WAS RECEIVED ON 14 TH DAY OF JUNE, 2010. IN SUPPORT OF THIS FACT, THE APPELLANT IS FILING A SWORN AFFIDAVIT. IT IS, THEREFORE, HUMBLY PRAYED THAT THE EX PARTE ORDER DATED 28.5.2010 MAY KINDLY BE RECALLED AND THE APPEAL RE- HEARD. YOURS FAITHFULLY, DATED: 3.8.2010 SD. APPELLANT 3. WE HAVE HEARD THE LD. D,.R. AND HAVE ALSO CAREFU LLY GONE THROUGH THE CONTENTS OF THE ABOVE APPLICATION. IT IS NOTICED TH AT THE APPEAL FILED BY THE ASSESSEE I.E. I.T.A.NO.308(LUC.)/2010 WAS FIXED FOR HEARING ON 28.5.2010. HOWEVER, ON THE SAID DATE NOBODY APPEARED ON BEHAL F OF THE ASSESSEE AND THE APPEAL WAS TREATED UNADMITTED AS PER THE PROVIS IONS OF RULE 19(2) OF THE INCOME-TAX (APPELLATE TRIBUNAL) RULES, 1963. IN THE INSTANT APPLICATION, THE ASSESSEE HAS CONTENDED THAT THE NOTICE OF HEARING COULD NOT BE RECEIVED BY HIM BEFORE THE DATE STIPULATED IN THE NOTICE BUT IT WAS RECEIVED ON 14 TH DAY OF JUNE, 2010. IN SUPPORT OF THIS FACT, THE ASSESSEE H AS ALSO FILED A SWORN AFFIDAVIT. 4. FROM THE ABOVE FACTS, IT IS CLEAR THAT THE ASS ESSEE HAS RECEIVED THE NOTICE OF HEARING ON 14 TH DAY OF JUNE, 2010 I.E. AFTER THE DATE OF HEARING FIXED FOR 28 TH MAY, 2010. AT THE TIME OF HEARING OF THE APPLICATI ON, SHRI ALOK MITRA, LD.D.R. COULD NOT CONTROVERT THE ABOVE CONT ENTION OF THE ASSESSEE. CONSIDERING THE ENTIRE FACTS AND CIRCUMSTANCES OF T HE CASE, WE ARE OF THE VIEW THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM ATTENDING THE 3 HEARING ON 28.5.2010. IN OUR VIEW, A REASONABLE OP PORTUNITY OF BEING HEARD TO THE ASSESSEE IN THE MATTER HAS NOT BEEN GIVEN B Y THE TRIBUNAL. IT IS TRUE THAT THE NATURAL JUSTICE DEMANDS NOT ONLY THAT A PE RSON BE HEARD BUT THAT HE BE GIVEN A FAIR HEARING IN THE MATTER. IN OTHER WOR DS, NO ONE SHOULD BE CONDEMNED UNHEARD. THUS, WE ARE OF THE VIEW THAT TH E ORDER OF THE TRIBUNAL DATED 28.5.2010 DESERVES TO BE SET ASIDE. WE ORDER ACCORDINGLY AND RESTORE THE APPEAL FOR HEARING. THE REGISTRY IS DIRECTED TO FIX THE APPEAL I.E. I.T.A.NO.308(LUC.)/2010 RELATING TO ASSESSMENT YEAR 2004-05 FOR HEARING IN DUE COURSE. 3. IN THE ABOVE TERMS, THE MISCELLANEOUS APPLICA TION IS ALLOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 1.10.20 10. SD. SD. (N.K.SAINI) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT OCTOBER , 2010. COPY TO THE : 1. APPLICANT 2. RESPONDENT 3. CIT(A) (4) CIT 5.DR. A.R.,ITAT, LUCKNOW. SRIVASTAVA.