Kanpur Subhash Shiksha Samiti, Kanpur V. DCIT, Kanpur

MA 46/LKW/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5304 (ITAT-LUCKNOW)
• Duration Of Justice: 2 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-11-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 26-11-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 01-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANADI VERMA
• Assessee Lawyers: SWARN SINGH
• Keywords: Reasonable cause

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.46(LKW.)/2010 ( IN I.T.A.NO.456(LUC.)/2010) A.Y. : 2006-07 KANPUR SUBHASH SHIKSHA SAMITI VS. THE DY.CIT,I, 122/470, SAKET NAGAR, KANPUR. KANPUR. PAN AAATK6164B (APPLICANT) (RESPONDENT) APPLICANT BY : SWARN SINGH, C.A. RESPONDENT BY : SHRI ANADI VERMA, SR. D.R. O R D E R PER H.L.KARWA, VICE PRESIDENT THIS MISCELLANEOUS APPLICATION BY THE ASSESSEE A RISES OUT OF THE TRIBUNAL DATED 30.6.2010 PASSED IN I.T.A.NO.456(L.) /2010 RELATING TO THE ASSESSMENT YEAR 2006-07. 2. THE ASSESSEE, VIDE ITS APPLICATION DATED 26.8.2 010, HAS STATED AS UNDER: MAY IT PLEASE YOUR HONOURS. YOUR HUMBLE APPLICANT IS IN RECEIPT OF THE ORDER D ATED 30.06.2010 IN THE CASE OF KANPUR SUBHASH SHIKSHA SA MITI, VS. THE DY. COMMISSIONER OF INCOME TAX-I, KANPUR, IN I.T.A. NO. 456(LUC)/2010 FOR THE ASSESSMENT YEAR 2006-2007. ... THE ABOVE APPEAL WAS FIXED FOR HEARING ON 30. 06.2010. HOWEVER, NOBODY APPEARED ON BEHALF OF THE ASSESSEE DESPITE 2 SERVICE OF NOTICE BY REGISTERED POST. THE ASSESSEE HAS ALSO NOT FILED ANY APPLICATION SEEKING ADJOURNMENT OF THE HE ARING. IT SEEMS THAT THE ASSESSEE IS NOT INTERESTED TO PURSUE THE MATTER. IT IS WELL SETTLED LAW THAT LAWS AID THOSE WHO ARE VIG ILANT, NOT THOSE WHO SLEEP UPON THEIR RIGHTS. THIS PRINCIPLE I S EMBODIED IN WELL KNOWN DICTUM, 'VIGILANTIBUS ET NON DORMIENTIBUS JURA SUBVENIUNT', CONSIDERING THE FACTS AND KEEPING IN VIEW THE PROVISIONS OF RULE 19 (2) OF THE APPELLATE TRIBUNAL RULES, AS WERE CONSIDERED IN 38I TD 320 (DEL) IN THE CASE OF CIT VS. MULTIPLAN INDIA LTD., WE TREAT THE APPEAL AS UNADMITTED ... ' 3) THE HON'BLE TRIBUNAL WAS PLEASED TO DISMISS THE APPEAL VIDE OBSERVATION IN PARA 2 OF THE AFORESAID ORDER. YOUR HUMBLE APPLICANT BEGS TO SUBMIT FOLLOWING FA CTS:- I) THE NOTICE OF HEARING ON 30.06.2010, WAS NEVER S ERVED ON THE APPLICANT AS IS CLEAR FROM A CERTIFICATE ISS UED BY THE SENIOR SUPDT. OF POST OFFICES, KANPUR CITY DATE D 05.08.2010 INFORMING THAT THE SAID NOTICE WAS RETUR N BACK ON 26 TH JUNE 2010 WITH POSTAL REMARK 'LEFT', A COPY OF WHICH IS ATTACHED MARKED AS ANNEXURE-I. II) THAT THE ADDRESS OF THE APPLICANT AS MENTIONED ON THE ORDER IN I.T.A. NO. 456(LUC)/2010 FOR ASSESSMENT YE AR 2006-2007 IS CORRECT AND FULL FLEDGED SCHOOL IS RUN NING AT THE SAID ADDRESS. EVEN THEN THE SCHOOL IS CLOSED, T HE GUARD AND ONE OR TWO ASSISTANTS ARE ALWAYS PRESENT IN THE SCHOOL PREMISES. III) THAT THE ORDER UNDER REFERENCE WAS ALSO SERVE D ON THE SAME ADDRESS ON 10.07.2010, HENCE THE ADDRESS ON RE CORD IS CORRECT. IV) THAT THE HEARING FIXED ON 30 TH JUNE, 2010, WAS THE FIRST HEARING AND THEREFORE, IN THE LARGER INTEREST OF JU STICE ANOTHER OPPORTUNITY OUGHT TO HAVE BEEN GIVEN TO THE APPLICANT PARTICULARLY WHEN THE SERVICE OF THE NOTI CE, FOR WHATEVER REASON, WAS NOT EFFECTED. 3 YOUR HUMBLE APPLICANT WITH ALL HUMILITY AT ITS COMM AND BEGS TO PRAY AS FOLLOWS:- PRAYER A) THE ORDER IN THE ABOVE APPEAL [I.T.A. NO. 456(LU C)/2010] MAY BE RECALLED AND YOUR HUMBLE APPLICANT MAY BE GRANTE D AN OPPORTUNITY TO MAKE PROPER REPRESENTATION BEFORE TH E HON'BLE TRIBUNAL. B) THE ORDER IN AFORESAID APPEAL HAS CAUSED GENUINE HARDSHIP TO YOUR HUMBLE APPLICANT AND THEREFORE, IN THE LARGER INTEREST OF JUSTICE, THE HON'BLE TRIBUNAL MAY BE PLEASED TO REC ALL THE ORDER AND DECIDE THE SAME AFRESH AFTER PROVIDING AN OPPOR TUNITY OF REPRESENTATION TO THE HUMBLE APPLICANT. RESPECTFULLY SUBMITTED. YOURS FAITHFULLY, FOR KANPUR SUBHASH SHIKSHA SAMITI ENCL. 1. SD. MANAGING TRUSTEE. 3. WE HAVE HEARD THE LD. REPRESENTATIVES OF BOTH TH E PARTIES AND HAVE ALSO GONE THROUGH THE CONTENTS OF THE ABOVE APPLICA TION. SHRI ANADI VERMA, LD.D.R. RELIED ON THE ORDER OF THE TRIBUNAL. IT IS NOTICED THAT THE APPEAL FILED BY THE ASSESSEE I.E. I.T.A.NO.456(L.)/2010 WAS FIXE D FOR HEARING ON 30.6.2010. HOWEVER, ON THE SAID DATE NOBODY APPEARE D ON BEHALF OF THE ASSESSEE AND THE APPEAL WAS TREATED UNADMITTED AS P ER THE PROVISIONS OF RULE 19(2) OF THE INCOME-TAX (APPELLATE TRIBUNAL) RULES, 1963. IN THE INSTANT APPLICATION, THE ASSESSEE HAS CONTENDED THAT NO NOT ICE OF HEARING WAS RECEIVED BY IT. IT IS APPARENT FROM THE RECORD THAT THE NOTICE OF HEARING WAS SENT TO THE ASSESSEE BY REGISTERED POST ACKNOWLEDGE MENT DUE ON 23.6.2010. THE SAID NOTICE WAS RECEIVED BACK WITH T HE POSTAL REMARKS 4 LEFT. THUS, IT IS CLEAR THAT THE ASSESSEE WAS PRE VENTED BY REASONABLE CAUSE FROM APPEARING BEFORE THE TRIBUNAL ON 30.6.2010. IN VIEW OF THE ABOVE, WE SET ASIDE THE ORDER OF TH E TRIBUNAL DATED 30.6.2010 AND RESTORE THE APPEAL FOR HEARING. THE R EGISTRY IS DIRECTED TO FIX THE ABOVE APPEAL FOR HEARING IN DUE COURSE. THE ORDER PRONOUNCED IN THE OPEN COURT ON 26.11.20 10. (N.K.SAINI) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT NOVEMBER ,2010. COPY TO THE : 1. APPLICANT 2. RESPONDENT 3. CIT(A) (4) CIT 5.DR. A.R.,ITAT, LUCKNOW. SRIVASTAVA.