Asstt.CIT,Cir-2, Aurangabad, v. Tirumala Construction,,

ITA 268/PUN/2009 | 2005-2006
Pronouncement Date: 02-12-2010 | Result: Dismissed

Appeal Details

RSA Number 26824514 RSA 2009
Assessee PAN AADFT2477M
Bench Pune
Appeal Number ITA 268/PUN/2009
Duration Of Justice 1 year(s) 9 month(s) 11 day(s)
Appellant Asstt.CIT,Cir-2, Aurangabad,
Respondent Tirumala Construction,,
Appeal Type Income Tax Appeal
Pronouncement Date 02-12-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 02-12-2010
Assessment Year 2005-2006
Appeal Filed On 20-02-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV JUDICIAL MEMBER AND SHRI G.S. PANNU ACCOUNTANT MEMBER I.T.A. NO. 268/PN/2009: A.Y. 2005-06 ASSTT. CIT CIR. 2 AURANGABAD APPELLANT VS. M/S. TIRUMALA CONSTRUCTION PLOT NO. 2 PRATK PLAZA KHIVSARA PARAK ULKANAGARI AURANGABAD PAN AADFT 2477 M RESPONDENT APPELLANT BY: SHRI SANTOSH KUMAR RESPONDENT BY: NONE ORDER PER SHAILENDRA KUMAR YADAV JM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE CIT-(A) AURANGABAD DATED 12-11-2008 FO R A.Y. 2005-06 ON THE POINT OF DELETION OF ADDITION MADE U /S 40(A)(IA) AT RS. 20 39 060/- AND ALSO ON THE POINT OF DELETION OF ADDITION MADE U/S 80-IB(10). 2. THE NOTICES OF HEARING SENT TO THE ASSESSEE AT T HE ADDRESS GIVEN IN FORM NO. 36 WERE RECEIVED BACK UNSERVED. THEREFORE NOTICES OF HEARING WERE GIVEN TO THE DEPARTMENTAL R EPRESENTATIVE FOR EFFECTIVE SERVICE ON THE RESPONDENT ASSESSEE. HOWEV ER ON THE DATES OF HEARING NO INTIMATION WAS GIVEN BY THE LD. DR WH ETHER SERVICE OF THE NOTICE HAD BEEN EFFECTED ON THE ASSESSEE OR NOT . LAST SUCH NOTICE OF HEARING FIXING THE DATE OF HEARING AS 30- 11-2010 WAS PAGE 2 OF 6 ITA NO. 274/PN/2009 DILIP S GAWALI A.Y. 2005-06 HANDED OVER TO THE DR WELL IN ADVANCE OF THE DATE O F HEARING. HOWEVER WHEN THE APPEAL WAS CALLED ON FOR HEARING NONE PUT IN AN APPEARANCE ON BEHALF OF THE RESPONDENT ASSESSEE. SH RI SANTOSH KUMAR THE LEARNED DR WHO WAS PRESENT ON BEHALF OF T HE REVENUE WHEN ASKED ABOUT THE SERVICE ON THE RESPONDENT-ASSE SSEE WAS UNABLE TO SAY WHETHER SERVICE HAD BEEN EFFECTED OR NOT. DEPARTMENT HAS SHOWN TOTAL APATHY IN THE MATTER OF SERVICE OF NOTICES OF HEARING. ACCORDINGLY THE APPEAL OF THE REVENUE COUL D NOT BE HEARD ON MERIT IN ABSENCE OF SERVICE OF NOTICE UPON ASSES SEE. IT SHOWS THAT REVENUE HAS NOT PROVIDED PROPER ADDRESS OF ASSESSEE . OPPORTUNITY OF HEARING IS ESSENTIAL BEFORE ADJUDICATING APPEAL FOR WHICH SERVICE OF NOTICE IS CONDITION PRECEDENT. UNDER SECTION 254 (1) THE TRIBUNAL IS REQUIRED TO GIVE BOTH THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD. WHAT IS ENGRAINED IN SECTION 254(1) IS NOT AN EMPTY FORMALITY BUT A VALUABLE RIGHT AVAILABLE TO THE PAR TIES IN APPEAL BEFORE THE TRIBUNAL. SINCE IN THE INSTANT CASE NOTI CE OF HEARING COULD NOT BE EFFECTED ON THE RESPONDENT-ASSESSEE AT THE ADDRESS GIVEN BY THE REVENUE IN THE MEMORANDUM OF APPEAL A ND THE DEPARTMENTAL REPRESENTATIVE HAS NOT GOT THE N OTICE SERVICE IN SPITE OF SUFFICIENT OPPORTUNITY IT HAS NOT BEEN POSSIBLE TO CONDUCT THE ADJUDICATION PROCEEDINGS AS PER THE REQUIREMENT S OF SECTION 254(1). WHEN THE BENCH CONFRONTED THE LEARNED DR A S TO WHY THE REVENUE'S APPEAL MAY NOT BE DISMISSED FOR APATHY IN SERVICE OF NOTICES ON THE RESPONDENT-ASSESSEE THE LEARNED DR HAD NO ANSWER. PAGE 3 OF 6 ITA NO. 274/PN/2009 DILIP S GAWALI A.Y. 2005-06 3. IN AN APPEAL FILED BY THE REVENUE EXPEDITIOUS DI SPOSAL OF THE TAX DISPUTE WOULD NECESSARILY BE IN THE BEST INTERE ST OF THE REVENUE FOR WHICH CORRECT ADDRESS OF ASSESSEE IS NECESSARY SO THAT MATTER MAY BE DECIDED AFTER PROVIDING OPPORTUNITY OF HEARI NG. 4. APART FROM THE ABOVE WE FEEL THAT IT HAS BEEN T HE ESTABLISHED PRACTICE AND ACCEPTED PROCEDURE THAT IN CASE NOTICE S OF HEARING CANNOT BE SERVED ON THE RESPONDENT ASSESSEES IN REV ENUE'S APPEALS SUCH NOTICES ARE GOT SERVED THROUGH INCOME-TAX AUTH ORITIES. SUCH PRACTICE AND PROCEDURE HAS BEEN LONG ESTABLISHED AN D FOLLOWED IN THE INTEREST OF EXPEDITIOUS ADJUDICATION OF TAX DIS PUTES. 5. APART FROM THE CONSIDERATION OF EXPEDIENCY AND E QUITY AS REFERRED HEREIN ABOVE WE ARE OF THE CONSIDERED VIE W THAT THE PRACTICE OF GETTING THE SERVICE EFFECTED ON THE RES PONDENT-ASSESSEE IN A REVENUE'S APPEAL WHEREIN NOTICES OF HEARING CO ULD NOT BE SERVED ON THE ASSESSEE BY POST IS FULLY IN CONFORMITY WITH THE JUDICIAL POWERS AND JURISDICTION OF THE TRIBUNAL AND DOES NO T IN ANY MANNER RUN CONTRARY TO ANY PROVISIONS OF THE STATUTE. POWE RS CONFERRED BY AN ENABLING STATUTE INCLUDE NOT ONLY SUCH AS ARE EX PRESSLY GRANTED BUT ALSO BY IMPLICATION ALL POWERS WHICH ARE REAS ONABLY NECESSARY FOR THE ACCOMPLISHMENT OF THE OBJECT INTENDED TO BE SECURED. THE DOCTRINE OF INCIDENTAL OR IMPLIED POWERS OF THE APP ELLATE AUTHORITY HAS BEEN ENUNCIATED AND ENDORSED BY THE HON'BLE SUP REME COURT IN THE CASE OF ITO V. M.K. MOHAMMED KUNHI [1969] 71 ITR 815. IT IS A WELL ESTABLISHED RULE OF LEGAL JURISPRUDENCE THAT WHERE AN ACT PAGE 4 OF 6 ITA NO. 274/PN/2009 DILIP S GAWALI A.Y. 2005-06 CONFERS A JURISDICTION IT IMPLIEDLY GRANTS THE POW ERS OF DOING ALL SUCH ACTS OR EMPLOYING SUCH MEANS AS ARE ESSENTIA LLY NECESSARY TO ITS EXECUTION. 6. IT IS WELL SETTLED THAT WHERE A SUBSTANTIVE POWE R IS CONFERRED UPON A COURT OR TRIBUNAL ALL INCIDENTAL AND ANCILL ARY POWERS NECESSARY FOR AN EFFECTIVE EXERCISE OF THE SUBSTANT IVE POWER HAVE TO BE INFERRED - CHIEF EXECUTIVE OFFICER AND VICE-CHAIRMAN GUJARAT MARITIME BOARD V. HAJI DAUD HAJI HARUN ABU [1996] 11 SCC 23. 7. IN THE CONTEXT OF THE JURISDICTION AND POWERS OF THE CUSTOMS EXCISE AND GOLD (CONTROL) APPELLATE TRIBUNAL THE S UPREME COURT HAS IN UNION OF INDIA V. PARAS LAMINATES (P.) LTD. [1990] 186 ITR 722 726 OBSERVED : THERE IS NO DOUBT THAT THE TRIBUNAL FUNCTIONS AS A COURT WITHIN THE LIMITS OF ITS JURISDICTION. IT HAS ALL THE POWE RS CONFERRED EXPRESSLY BY THE STATUTE. FURTHERMORE BEING A JUDI CIAL BODY IT HAS ALL THOSE INCIDENTAL AND ANCILLARY POWERS WHICH ARE NECESSARY TO MAKE FULLY EFFECTIVE THE EXPRESS GRANT OF STATUT ORY POWERS. CERTAIN POWERS ARE RECOGNIZED AS INCIDENTAL AND ANC ILLARY NOT BECAUSE THEY ARE INHERENT IN THE TRIBUNAL OR BECAU SE ITS JURISDICTION IS PLENARY BUT BECAUSE IT IS THE LEGI SLATIVE INTENT THAT THE POWER WHICH IS EXPRESSLY GRANTED IN THE ASSIGNE D FIELD OF JURISDICTION IS EFFICACIOUSLY AND MEANINGFULLY EXER CISED. THE POWERS OF THE TRIBUNAL ARE NO DOUBT LIMITED. ITS AR EA OF JURISDICTION IS CLEARLY DEFINED BUT WITHIN THE BOU NDS OF ITS JURISDICTION IT HAS ALL THE POWERS EXPRESSLY AND I MPLIEDLY GRANTED. THE IMPLIED GRANT IS OF COURSE LIMITED B Y THE EXPRESS GRANT AND THEREFORE IT CAN ONLY BE OF SUCH POWER AS ARE TRULY INCIDENTAL AND ANCILLARY FOR DOING ALL SUCH ACTS OR EMPLOYING ALL SUCH MEANS AS ARE REASONABLY NECESSARY TO MAKE THE GRANT EFFECTIVE. 8. REFERENCE MAY FURTHER BE MADE TO THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF PARA LAMINATES (P.) LTD.'S CASE ( SUPRA ) PAGE 5 OF 6 ITA NO. 274/PN/2009 DILIP S GAWALI A.Y. 2005-06 WHEREIN A SIMILAR PROPOSITION HAS BEEN ENUNCIATED B Y THE APEX COURT AND IT HAS BEEN HELD THAT THE TRIBUNAL IS ENT ITLED TO EXERCISE ALL INCIDENTAL AND ANCILLARY POWERS WHICH ARE REASO NABLY NECESSARY FOR PERFORMING THE ADJUDICATIVE FUNCTIONS. APPLYING THE AFORESAID PRINCIPLES IT CLEARLY FOLLOWS THAT IT WAS OBLIGATO RY ON THE PART OF THE I.T. AUTHORITY TO EFFECT SERVICE OF NOTICE OF HEARI NG ON THE ASSESSEE SINCE THE SERVICE COULD NOT BE EFFECTED BY POST AT THE ADDRESS GIVEN BY THE REVENUE IN THE MEMORANDUM OF APPEAL. THE TRI BUNAL WAS THEREFORE WELL WITHIN ITS POWERS TO DIRECT THE I.T. DEPARTMENT TO EFFECT SERVICE ON THE ASSESSEE PARTICULARLY SINCE T HE DEPARTMENT AS AN EXECUTIVE ORGANIZATION IS WELL EQUIPPED WITH THE REQUISITE STAFF STRENGTH OF NOTICE SERVER INCOME-TAX INSPECTOR ETC . FOR THE PURPOSE OF SERVING VARIOUS STATUTORY NOTICES ON THE TAX PAY ER. SINCE THE REVENUE HAS SHOWN APATHY WITH REGARD FOR SERVING TH E NOTICES OF HEARING ON THE RESPONDENT ASSESSEE. REVENUE HAS ALS O NOT MADE ANY REQUEST TO GET THE NOTICE SERVED BY ALTERNATE W AY I.E. BY WAY OF PUBLICATION ETC. WHICH IS LAID DOWN IN RULE 20 OF C PC. TRIBUNAL CAN TAKE HELP ON PROCEDURAL ASPECT AS LAID DOWN UNDER R ELEVANT PROVISIONS OF THE CIVIL PROCEDURE CODE WHERE INCOME -TAX ACT AND RULE THEREUNDER ARE NOT ABLE TO MEET PARTICULAR SIT UATION. THIS VIEW IS FORTIFIED BY RATIO LAID DOWN IN THE CASE OF M.K. MOHAMMED KUNHI ( SUPRA ) WHEREIN IT HAS BEEN HELD THAT TRIBUNAL HAS POWER IDENTICAL PAGE 6 OF 6 ITA NO. 274/PN/2009 DILIP S GAWALI A.Y. 2005-06 TO APPELLATE COURT UNDER C.P.C. WE ARE OF THE VIEW THAT ONCE REVENUE IS NOT ABLE TO GET EXACT ADDRESS OF ASSESSE E HOW IT WILL FOLLOW THE SAME IN CASE MATTER IS DECIDED IN FAVOU R OF REVENUE. IN THE FACTS AND CIRCUMSTANCES OF THE CASE WE HAVE NO ALTERNATIVE BUT TO DISMISS THE APPEAL. HOWEVER REVENUE IS AT LIBER TY TO GET THIS ORDER RECALLED TO DECIDE ON MERIT IN CASE ASSESSEE IS TRACED BY THE REVENUE. THIS VIEW IS FORTIFIED BY THE DECISION OF AHMEDABAD BENCH A OF THE TRIBUNAL IN THE CASE OF DY. CIT VS. ADIT YA ORGANISERS (P) LTD. (2004) 91 ITD 342 (AHD). 9. IN THE RESULT THE APPEAL OF THE REVENUE IS DISM ISSED. DECISION PRONOUNCED IN THE OPEN COURT AT THE CONCL USION OF THE HEARING. SD/- SD/- (G.S. PANNU) ACCOUNTANT MEMBER (SHAILENDRA KUMAR YADAV) JUDICIAL MEMBER PUNE DATED THE 2 ND DECEMBER 2010 ANKAM COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT- (A) AURANGABAD 4. THE CIT- AURANGABAD 5. THE D.R B BENCH PUNE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE