DIT(E), New Delhi V. Ram Swarup Goela Memorial Charitable Trust, New Delhi

MA 5/DEL/2011

• Counselvise Citation: [2011] 111 COUNSELVISE.COM (IT) 0366 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-03-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2008-2009
• Appeal Filed On: 16-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K RAVI RAM CHANDRAN
• Keywords: Charitable institution
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH E EE E : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI C.L.SETHI, JM AND SHRI BEFORE SHRI C.L.SETHI, JM AND SHRI BEFORE SHRI C.L.SETHI, JM AND SHRI BEFORE SHRI C.L.SETHI, JM AND SHRI A.K.GARODIA A.K.GARODIA A.K.GARODIA A.K.GARODIA, AM , AM , AM , AM MISCELLAN MISCELLAN MISCELLAN MISCELLANEOUS APPLICATION NO.05/DEL/2011 EOUS APPLICATION NO.05/DEL/2011 EOUS APPLICATION NO.05/DEL/2011 EOUS APPLICATION NO.05/DEL/2011 (IN MISCELLANEOUS APPLICATION NO.679/DEL/2009) (IN MISCELLANEOUS APPLICATION NO.679/DEL/2009) (IN MISCELLANEOUS APPLICATION NO.679/DEL/2009) (IN MISCELLANEOUS APPLICATION NO.679/DEL/2009) (IN ITA NO. (IN ITA NO. (IN ITA NO. (IN ITA NO.3056 3056 3056 3056/DEL/20 /DEL/20 /DEL/20 /DEL/2008 0808 08) )) ) ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : N.A. N.A. N.A. N.A. INCOME TAX OFFICER (H.Q.)(E), INCOME TAX OFFICER (H.Q.)(E), INCOME TAX OFFICER (H.Q.)(E), INCOME TAX OFFICER (H.Q.)(E), DELHI. DELHI. DELHI. DELHI. VS. VS. VS. VS. SHRI RAM SARUP GOELA MEMORIAL SHRI RAM SARUP GOELA MEMORIAL SHRI RAM SARUP GOELA MEMORIAL SHRI RAM SARUP GOELA MEMORIAL CHARITABLE TRUST, CHARITABLE TRUST, CHARITABLE TRUST, CHARITABLE TRUST, C CC C- -- -52, ROHIT KUNJ, 52, ROHIT KUNJ, 52, ROHIT KUNJ, 52, ROHIT KUNJ, PITAMPURA, PITAMPURA, PITAMPURA, PITAMPURA, DELHI. DELHI. DELHI. DELHI. PAN NO.AABTR2829R. PAN NO.AABTR2829R. PAN NO.AABTR2829R. PAN NO.AABTR2829R. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI K.RAVI RAMCHANDRAN, SR.DR ASSESSEE BY : SHRI SALIL AGGRAWAL, ADVOCATE. ORDER ORDER ORDER ORDER PER C.L.SETHI PER C.L.SETHI PER C.L.SETHI PER C.L.SETHI, J , J, J , JM : M : M : M : THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FIL ED BY THE REVENUE IN RESPECT OF THE TRIBUNALS ORDER DATED 19 .2.2010 PASSED IN MISCELLANEOUS APPLICATION NO.679/DEL/2009 WHICH HAD ARISEN IN RESPECT OF THE ORDER DATED 7.7.2009 PASSED BY THE TRIBUNAL DISMISSING THE ASSESSEES ABOVE REFERRED APPEAL FOR WANT OF PROSEC UTION. THE REVENUE HAS STATED THAT ASSESSEES MISCELLANEOUS AP PLICATION NO.679/DEL/2009 HAS BEEN ALLOWED BY RECALLING THE T RIBUNALS ORDER DATED 7.7.2009 ON THE GROUND THAT THE NOTICE OF HEA RING WAS NOT SERVED UPON THE ASSESSEE THOUGH IN THE TRIBUNALS O RDER DATED 7.7.2009, IT WAS CLEARLY STATED THAT NOTICE OF HEAR ING HAD BEEN SERVED UPON THE ASSESSEE. THE REVENUE, THEREFORE, CONTEND ED THAT THERE WAS A MISTAKE IN THE TRIBUNALS ORDER DATED 19.2.2010 P ASSED IN M.A.NO.679/DEL/2009. 2. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. MA-05/DEL/2011 2 3. THE ASSESSEES APPEAL WAS DISMISSED FOR WANT OF PROSECUTION VIDE ORDER DATED 7.7.2009 WHERE IT WAS STATED THAT FROM THE ACKNOWLEDGEMENT IT WAS EVIDENT THAT THE NOTICE WAS DULY SERVED UPON THE ASSESSEE. HOWEVER, ON AN APPLICATION MADE BY T HE ASSESSEE CONTENDING THAT NOTICE WAS NOT SERVED UPON THE ASSE SSEE, THE TRIBUNALS AFORESAID ORDER DATED 7.7.2009 WAS RECAL LED AND THE APPEAL WAS RESTORED TO FILE. WE HAVE EXAMINED THE RECORD AND FIND THAT THE NOTICE SENT TO THE ASSESSEE ON 28.5.2009 WAS SERVED AS WAS EVIDENT FROM THE ACKNOWLEDGEMENT SLIP. THE SIGNATURE OF TH E PERSON WHO RECEIVED THE NOTICE IS NOT LEGIBLE. SUBSEQUENTLY, THE ASSESSEE FILED A MISCELLANEOUS APPLICATION THAT NOTICE WAS NOT SERVE D UPON THE ASSESSEE AND THAT APPLICATION WAS SUPPORTED BY AN A FFIDAVIT. RELYING UPON THE ASSESSEES AFFIDAVIT, IT WAS ACCEPTED THAT THE NOTICE WAS NOT SERVED UPON THE ASSESSEE HIMSELF. THEREFORE, THE O RDER DISMISSING THE ASSESSEES APPEAL WAS RECALLED. WE, THEREFORE, DO NOT FIND ANY MISTAKE IN OUR ORDER DATED 19.2.2010 PASSED IN M.A. NO.679/DEL/2009 RECALLING THE DISMISSAL ORDER DATED 7.7.2009. THER EFORE, THIS MISCELLANEOUS APPLICATION IS LIABLE TO BE DISMISSED . 4. EVEN OTHERWISE, THE PRESENT MISCELLANEOUS APPLIC ATION FILED IN RESPECT OF OUR ORDER DATED 19.2.2010 PASSED ON A MI SCELLANEOUS APPLICATION FILED BY THE ASSESSEE, IS NOT MAINTAINA BLE INASMUCH AS NO MISCELLANEOUS APPLICATION U/S 254(2) IS MAINTAINABL E AGAINST THE ORDER OF THE TRIBUNAL PASSED IN ANY MISCELLANEOUS APPLICA TION DECIDED U/S 254(2) OF THE ACT. THIS IS SO HELD BY THE SPECIAL BENCH OF ITAT IN THE CASE OF PADAM PRAKASH, HUF VS. ITO 136 TTJ 257 WH ERE IT WAS HELD THAT SUB-SECTION (2) OF SECTION 254 CAN BE INVOKED IF THERE IS A MISTAKE IN THE ORDER OF THE TRIBUNAL U/S 254(1) OF THE ACT AND THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE AGAINST THE EARLI ER ORDER PASSED U/S 254(2) IS NOT MAINTAINABLE FOR THE REASON THAT THE TRIBUNAL HAS NO MA-05/DEL/2011 3 POWER TO ADJUDICATE ON THE SUBSEQUENT APPLICATION F ILED U/S 254(2) OF THE ACT. 5. IN THE RESULT, THIS MISCELLANEOUS APPLICATION FI LED BY THE REVENUE IS DISMISSED AS NOT MAINTAINABLE. DECISION PRONOUNCED IN THE OPEN COURT ON CONCLUSION OF HEARING ON 18 TH MARCH, 2011. SD/- SD/- (A.K.GARODIA (A.K.GARODIA (A.K.GARODIA (A.K.GARODIA) )) ) (C.L.SETHI (C.L.SETHI (C.L.SETHI (C.L.SETHI) )) ) ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER DATED : 18.03.2011. VK. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR MA-05/DEL/2011 4