Alex .C.Joseph, Thiruvalla V. ITO, Thiruvalla

MA 61/COCH/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8945 (ITAT-COCHIN)
• Duration Of Justice: 2 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 1992-1993
• Appeal Filed On: 29-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B SAJEEV
• Assessee Lawyers: ASHWIN GOPAKUMAR
• Keywords: Reasonable cause

Judgement Text

1 M.A. NO.61/COCH/2012 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKARA N(AM) M.A. NO.61/COCH/2012 (ARISING OUT OF I.T.A NO. 707/COCH/2005) (ASSESSMENT YEAR 1992-93) SHRI ALEX C JOSEPH VS ITO, WD.1 CHEKKATTU HOUSE THIRUVALLA THADIYOOR PO, THIRUVALLA PAN : ACJPJ4244J (APPELLANT) (RESPONDENT) APPLICANT BY : SHRI ASHWIN GOPAKUMAR RESPONDENT BY : SHRI B SAJEEV DATE OF HEARING : 07-092012 DATE OF PRONOUNCEMENT : 07-09-2012 O R D E R PER N.R.S. GANESAN (JM) THE TAXPAYER HAS FILED THE PRESENT MISCELLANEOUS A PPLICATION REQUESTING TO RECALL THE ORDER OF THIS TRIBUNAL IN M.A. NO.38/COC H/2010 DATED 19-04-2012. 2. SHRI ASHWIN GOPAKUMAR, THE LD.COUNSEL FOR THE APPL ICANT SUBMITTED THAT FALSE CASES WERE REGISTERED AGAINST THE TAXPAYER AN D HE WAS DETAINED IN PRISON. THEREFORE, FOR SOME TIME HE WAS NOT AVAILABLE AT HI S RESIDENCE. ACCORDING TO THE LD.REPRESENTATIVE, THE FALSE CASES REGISTERED AGAIN ST THE TAXPAYER WAS QUASHED BY THE HIGH COURT. THE LD.COUNSEL FURTHER SUBMITTED THAT THE NOTICE SENT BY THIS TRIBUNAL TO THE TAXPAYER RETURNED WITH AN ENDORSEME NT ADDRESSEE OUT OF 2 M.A. NO.61/COCH/2012 STATION. ACCORDING TO THE LD.COUNSEL THE TAXPAYER AUTHORIZED HIS BROTHER, SHRI ABRAHAM C JOSEPH TO RECEIVE ALL LETTERS AND ARTICLE S FROM THE POST OFFICE IN HIS ABSENCE. HOWEVER, NO SUCH LETTER FROM THE TRIBUNAL WAS SERVED ON THE TAXPAYERS BROTHER SHRI ABRAHAM C JOSEPH. AFTER THE ORDER OF THIS TRIBUNAL, THE TAXPAYER FILED AN APPLICATION UNDER RTI BEFORE THE PUBLIC IN FORMATION OFFICER OF THE POSTAL DEPARTMENT. THE POSTAL DEPARTMENT INFORMED THE TAX PAYER THAT NON DELIVERY OF LETTER IS DUE TO ERROR OF THE POSTMAN AND DISCIPLIN ARY ACTION IS BEING TAKEN AGAINST THE POSTMAN, WHO FAILED TO SERVE THE NOTICE ON THE TAXPAYERS BROTHER. THEREFORE, IT IS OBVIOUS THAT NO NOTICE WAS SERVED ON THE TAXPAYER ON THE MISCELLANEOUS APPLICATION. THEREFORE, THE LEARNED COUNSEL FOR THE TAXPAYER SUBMITTED THAT AN OPPORTUNITY MAY BE GIVEN TO THE T AXPAYER TO REPRESENT THE MATTER ON MERIT BEFORE THIS TRIBUNAL. 3. ON THE CONTRARY, SHRI B SAJEEV, THE LD.DR SUBMIT TED THAT THIS TRIBUNAL HAS TAKEN ALL THE EFFORTS TO SERVE THE NOTICE ON THE TAX PAYER THROUGH THE DEPARTMENT. THE DEPARTMENT COULD NOT SERVE THE NOTICE BECAUSE T HE TAXPAYER WAS NOT AVAILABLE AT HIS RESIDENCE. THE EARLIER REPRESENTA TIVE SHRI A.S. NARAYANAMURTHY INFORMED THE DEPARTMENT THAT HE WAS NO LONGER THE R EPRESENTATIVE FOR THE TAXPAYER. THEREFORE, THERE WAS NO REASONABLE CAUSE ON THE PART OF THE TAXPAYER FOR NOT APPEARING BEFORE THIS TRIBUNAL ON 19-04-2012 . 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE RECORD. AS RIGHTLY SUBMITTED BY THE LD.COUNSEL FOR THE TAXPAYE R, THE NOTICE SENT BY THIS TRIBUNAL WAS RETURNED WITH AN ENDORSEMENT ADDRESSE E OUT OF STATION. IT IS ALSO A FACT THAT THE TAXPAYER WAS DETAINED IN PRISON IN CONNECTION WITH SOME CRIMINAL CASES. THE TAXPAYER NOW CONTENDS THAT HE AUTHORIZE D HIS BROTHER TO RECEIVE THE LETTER FROM THE POST OFFICE IN HIS ABSENCE. HOWEVE R, THE POSTAL AUTHORITIES HAVE NOT SERVED THE NOTICE WHICH WAS ADDRESSED TO THE TA XPAYER. DISCIPLINARY PROCEEDINGS WERE ALSO INITIATED AGAINST THE POSTMAN WHO FAILED TO SERVE NOTICE 3 M.A. NO.61/COCH/2012 ON THE TAXPAYERS BROTHER. IN THESE CIRCUMSTANCES, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THERE WAS A REASONABLE CAUS E ON THE PART OF THE TAXPAYER FOR NOT APPEARING BEFORE THIS TRIBUNAL ON 19-04-2012. GIVING ONE MORE OPPORTUNITY TO THE TAXPAYER TO ARGUE THE MATTER ON MERIT MAY NOT PREJUDICE THE INTEREST OF THE REVENUE IN ANY WAY. THEREFORE, THI S TRIBUNAL IS OF THE CONSIDERED OPINION THAT GIVING ANOTHER OPPORTUNITY TO THE TAXP AYER TO ARGUE THE MATTER ON MERIT WOULD DEFINITELY PROMOTE THE CAUSE OF JUSTICE . ACCORDINGLY IN EXERCISE OF POWERS CONFERRED ON THIS TRIBUNAL UNDER PROVISO TO RULE 24 OF INCOME- TAX(APPELLATE) TRIBUNAL RULES, 1963 THE ORDER IN MI SCELLANEOUS APPLICATION NO.38/COCH/2010 ARISING OUT OF I.T.A NO.707/COCH/20 05 DATED 19-04-2012 IS HEREBY RECALLED. 5. NOW MISCELLANEOUS APPLICATION IN M.A. NO.38/COCH /2010 STANDS RESTORED ON THE FILE OF THIS TRIBUNAL. AS PRONOUNCED IN THE OPEN COURT, THE REGISTRY IS DIRECTED TO POST THE MISCELLANEOUS APPLICATION NO.3 8/COCH/2012 FOR FINAL DISPOSAL ON 12-10-2012. IT IS MADE VERY CLEAR THAT THE DATE O F HEARING OF THE MISCELLANEOUS APPLICATION NO.38/COCH/2010 IS ANNOUN CED IN THE OPEN COURT IN THE PRESENCE OF BOTH THE PARTIES. THEREFORE, IT IS NOT NECESSARY FOR THE REGISTRY TO ISSUE ANY FURTHER NOTICE OF HEARING TO EITHER PARTY . 6. WITH THE ABOVE OBSERVATIONS, THE MISCELLANEOUS A PPLICATION OF THE TAXPAYER IN M.A. NO.61/COCH/2012 STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON THIS 07 TH DAY OF SEPTEMBER, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 07 TH SEPTEMBER, 2012 PK/- 4 M.A. NO.61/COCH/2012 COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH