Shri Sudesh Kumar Pandey, Bhopal V. The I.T.O., Bhopal

MA 79/IND/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8689 (ITAT-INDORE)
• Duration Of Justice: 1 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-07-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2001-2002
• Appeal Filed On: 07-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: H P VERMA; SAKSHI VERMA

Judgement Text

1 THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER MA NOS. 79 TO 81/IND/2012 (ARISING OUT OF ITA NOS. 180 TO 182/IND/2010) A.YS. 2001-02 TO 2003-04 SUDESH PANDEY, PROP. S.K. TENT HOUSE, BHOPAL PAN AGAPK 5389 E . APPLICANT VS. ITO-2(1), BHOPAL . RESPONDENT DATE OF HEARING 13.7.2012 DATE OF PRONOUNCEMENT 13.7.2012 APPLICANT BY SHRI H.P. VERMA AND MISS SAKSHI VERMA RESPONDENT BY SHRI R.A. VERMA, SR. DR ORDER PER BENCH BY THESE MISCELLANEOUS APPLICATIONS FILED U/S 254( 2) OF THE INCOME TAX ACT, 1961, THE ASSESSEE SEEKS TO RECALL AN EX-PARTE 2 ORDER OF THE TRIBUNAL DATED 8.12.2010 ON THE GROUND THAT THE NOTICE SENT BY THE TRIBUNAL WAS REFUSED BY ANY ILLI TERATE EMPLOYEE WORKING IN THE TENT HOUSE AND NOT BY THE ASSESSEE. THE ASSESSEE HAS ALSO FILED AN AFFIDAVIT IN SUPPORT OF HIS CLAIM. IT WAS PLEADED THAT BY REFUSING THE NOTICE RATHER THE ASSE SSEE IS THE LOSER AND IS NOT GETTING ANY BENEFIT. IF THE INTENT ION WOULD HAVE BEEN OF NON-APPEARANCE THEN THERE WAS NO NEED TO FI LE THESE APPEALS BEFORE THE TRIBUNAL. DURING HEARING, WE HAV E HEARD SHRI H.P. VERMA ALONG WITH MISS SAKSHI VERMA, LD. COUNSE L FOR THE ASSESSEE AND SHRI R.A. VERMA, LD. SR. DR. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS IDENTICAL TO THE GROUN D RAISED AS HAS BEEN SUMMARIZED ABOVE. WHEREAS THE LD. SR. DR CONTE NDED THAT IT IS NOT A SIMPLE CASE OF SERVICE OR NON-SERVICE O F NOTICE RATHER THE EMPLOYEE OF THE ASSESSEE REFUSED TO TAKE THE NO TICE, THEREFORE, THE EXPARTE ORDER OF THE TRIBUNAL MAY NO T BE RECALLED. 2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON THE RECORD. ADMITTEDLY, THE N OTICE SENT BY THE TRIBUNAL WAS RETUNED BACK WITH THE POSTAL REMARKS REFUSED TO 3 TAKE. HOWEVER, AS THE ASSESSEE HAS FILED AN AFFIDA VIT THAT AN ILLITERATE EMPLOYEE MIGHT HAVE REFUSED WITHOUT CONS IDERING THE NATURE OF THE NOTICE, THEREFORE, WE ARE OF THE CONS IDERED OPINION THE ASSESSEE SHOULD NOT BE PENALIZED, THAT TOO, WIT HOUT HEARING THE ASSESSEE. WE ARE IN AGREEMENT WITH THE ARGUMENT S OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE IS NOT G ETTING ANY BENEFIT FROM SUCH REFUSAL RATHER THESE APPEALS WERE FILED BY THE ASSESSEE HIMSELF. THE ASSESSEE IN HIS AFFIDAVIT HAS TENDERED THAT HE IS THE SOLE PROPRIETOR OF THE BUSINESS IN THE NA ME OF S.K. TENT HOUSE, VAISHALI NAGAR, BHOPAL AND THE SAID TENT HOU SE IS BEING RUN FOR THE LAST ABOUT 15 YEARS. IT HAS BEEN FURTHE R MENTIONED THAT THE LETTERS OR THE ORDERS SENT TO THE ABOVE ADDRESS ARE REGULARLY SERVED UPON THE DEPONENT/ASSESSEE. IT WAS CONTENDED BY THE LD. COUNSEL FOR THE ASSESSEE THAT SOMEWHERE, THERE IS A MISTAKE ON THE PART OF THE EMPLOYEE OF THE ASSESSEE, FOR WHICH , THE ASSESSEE SHOULD NOT BE PENALIZED. WE ARE ALSO OF THE CONSIDE RED OPINION THAT, KEEPING IN VIEW THE PRINCIPLE OF NATURAL JUST ICE, NO PERSON SHOULD BE CONDEMNED UNHEARD, THEREFORE, THE EXPARTE ORDER OF 4 THE TRIBUNAL DATED 8.12.2010 IS RECALLED. THE APPEA LS OF THE ASSESSEE ARE FIXED FOR HEARING FOR 25.7.2012 AND SI NCE THE NEXT DATE OF THE HEARING WAS DULY NOTED BY THE LD. RESPE CTIVE COUNSEL, THEREFORE, NO SEPARATE NOTICE OF HEARING WILL BE SE NT TO THE ASSESSEE. FINALLY, THE MISCELLANEOUS APPLICATIONS OF THE ASS ESSEE ARE ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRES ENCE OF LEARNED REPRESENTATIVES OF BOTH SIDES AT THE CONCLU SION OF HEARING ON 13.7.2012. SD SD (R.C. SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 13.7.2012 COPY TO : APPELLANT/RESPONDENT/CIT/CIT(A)/DR !VYS!