M/s. Moet's Bar-Be-Cue, New Delhi v. ACIT, Central Cir-9, New Delhi

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E NEW DELHI) BEFORE SHRI R.P. TOLANI JUDICIAL MEMBER AND SHRI K .G. BANSAL ACCOUNTANT MEMBER M.A. NOS.44 & 45/D/2010 ( I.T.A. NOS.1945 & 1946/D/09 ) ASSESSMENT YEARS: 2004-05 2005-06 M/S MOETS BAR-BE-CUE VS. ASSTT. C.I.T. 50 DEFENCE COLONY MARKET CENTRAL CIRCLE-9 NEW DELHI NEW DELHI PAN NO.AAAFM 7936M M.A. NOS.46 & 47/D/2010 (I.T.A. NOS.2135 & 2136/D/09) ASSESSMENT YEARS: 2004-05 & 2005-06 ASSTT. C.I.T. VS. M/S MOETS BAR-BE-CUE CENTRAL CIRCLE-9 50 DEFENCE COLONY MARKET NEW DELHI NEW DELHI (APPLICANT) (RESPONDENT) APPLICANT BY : S/SHRI ANIL JAIN & RISHAB JAIN ADVOCATES RESPONDENT BY : SHRI N.K. CHAND DR ORDER PER K.G. BANSAL: AM: IN THIS CASE THE TRIBUNAL HAD PASSED THE EXPARTE ORDER QUA THE ASSESSEE IN CROSS APPEALS FOR ASSESSMENT YE ARS 2004- 05 & 2005-06 IN WHICH THE APPEALS OF THE ASSESSEE WERE DISMISSED AND THOSE OF REVENUE WERE ALLOWED. THE A SSESSEE 2 FILED A MISCELLANEOUS APPLICATION ON 20.01.2010 BRI NGING OUT THE FOLLOWING FACTS:- I) THE CAPTIONED APPEAL FILED BY THE ASSESSEE HAS BEEN DECIDED BY BENCH E OF THE INCOME TAX APPELLATE TRIB UNAL VIDE THEIR CONSOLIDATED ORDER DATED 6 TH NOVEMBER 2009. A COPY OF THE ORDER IS ENCLOSED AS ANNEXURE-A. II) IN THE SAID ORDER THE APPEALS FILED BY THE ASSE SSEE FOR THE ASSESSMENT YEARS 2004-05 AND 2005-06 HAS BEEN DISMISSED BY THE HONBLE TRIBUNAL AND THE CROSS APP EALS FILED BY THE REVENUE FOR BOTH THE YEARS HAS BEEN AL LOWED BY OBSERVING AT PAGE 4 & 5 AS UNDER: IN SPITE OF SERVICE OF NOTICE FOR HEARING NONE WAS PRESENT ON BEHALF OF THE ASSESSEE. III) THE APPEALS FOR THE ASSESSMENT YEARS 2004-05 A ND 2005- 06 WERE FILED ON 02.03.2009 AND AS PER THE ACKNOWLEDGEMENT OF THE FILING OF THE APPEAL THE CAS E WAS FIXED BEFORE BENCH C ON 21.07.2009. ON THE DATE O F HEARING THE C BENCH WAS NOT WORKING HENCE THE CASE COULD NOT BE TAKEN UP. IV) IN THE MEANTIME THE ASSESSEE ALSO RECEIVED A M EMO OF APPEAL FILED BY THE REVENUE IN I.T.A. NO.2135/D/09 FOR ASSESSMENT YEAR 2004-05 AND 2136/D/09 FOR ASSESSME NT YEAR 2005-06 FIXED BEFORE BENCH D AND .THE DATE OF HEARING WAS FIXED FOR 3 RD AUGUST 2009. ON THE DATE OF 3 HEARING THE D BENCH WAS ALSO NOT WORKING HENCE THE CASE COULD NOT BE TAKEN UP. V) IN ORDER TO FACILITATE THE DISPOSAL OF ALL THE F OUR APPEALS AN APPLICATION TO THE HONBLE VICE PRESIDENT WAS FILED VIDE LETTER DATED 03.08.2009 FOR CONSOLIDATION OF ALL TH E FOUR APPEALS IN ONE BENCH ON 06.08.2009 COPY ENCLOSED. VI) IN THE IMPUGNED ORDER DATED 06.11.2009 IT HAS B EEN OBSERVED BY THE HONBLE BENCH AT PARA 5 AND 4 THAT NOTICE OF HEARING HAS BEEN SERVED ON THE ASSESSEE A ND NONE WAS PRESENT ON BEHALF OF THE ASSESSEE WHEREAS THE APPELLANT HAS NOT RECEIVED ANY NOTICE OF HEARING EX CEPT THE DATE OF HEARING MENTIONED IN THE ACKNOWLEDGEMEN T OF FILING OF THE APPEAL. AN AFFIDAVIT OF THE APPELLAN T IS ENCLOSED AFFIRMING ON OATH THAT NO NOTICE OF HEARIN G HAS BEEN RECEIVED BY HIM. 1.2 THE APPLICATION WAS ACCOMPANIED BY AN AFFIDAVIT SWORN BY SHRI SANDEEP BINDRA ON 22.01.2010 TO THE EFFECT THAT HE HAD READ THE ACCOMPANYING MISCELLANEOUS APPLICAT ION PREPARED BY THE COUNSEL UNDER HIS ADVICE AND INSTRU CTION AND THE AVERMENTS MADE THEREIN ARE TRUE AND CORRECT . 1.3 BEFORE US THE LEARNED COUNSEL REPRESENTED THE CONTENTS OF THE APPLICATION MENTIONED ABOVE. IN REPLY THE LEARNED DR SUBMITTED THAT THE TRIBUNAL HAD ISSUED THE NOTIC E 4 FIXING THE CASE FOR HEARING ON 14.09.2009 AND IN VI EW THEREOF HE WOULD LIKE TO INSPECT THE RECORD TO VERI FY WHETHER THE NOTICE WAS SERVED ON THE ASSESSEE OR NO T. THE RECORD WAS SHOWN TO HIM. 1.4 WE HAVE CONSIDERED THE FACTS OF THE CASE AND SUBMISSIONS MADE BEFORE US. IT IS SEEN THAT THE RE GISTRY HAD ISSUED A NOTICE TO THE ASSESSEE ON 27.08.2009 FIXING THE CASE FOR HEARING ON 14.09.2009. THERE I S NO EVIDENCE ON RECORD TO SHOW THAT THIS NOTICE WAS SER VED ON THE ASSESSEE. RULE 24 EMPOWERS THE TRIBUNAL TO PASS AN EXPARTE ORDER ON MERITS QUA THE APPELLANT A FTER HEARING THE RESPONDENT. HOWEVER THE PROVISO TO TH IS RULE STATES THAT IF THE APPELLANT APPEARS AFTERWARD S AND SATISFIES THE TRIBUNAL THAT THERE WAS SUFFICIENT CA USE FOR HIS NON-APPEARANCE WHEN THE APPEAL WAS CALLED FOR HEARING THE TRIBUNAL SHALL MAKE AN ORDER SETTING A SIDE THE EXPARTE ORDER AND RESTORE THE APPEAL. SIMILAR PROVISION IS MADE IN RULE 25 WHEN ORDERS ARE PASSED EXPARTE QUA THE RESPONDENT. ON PERUSAL OF FACTS ON RECORD IT APPEARS THAT THE NOTICE FOR 14.09.2009 W AS NOT SERVED ON THE ASSESSEE. THIS CONCLUSION GETS STREN GTH FROM THE AFFIDAVIT OF THE ASSESSEE. THUS IT IS HE LD THAT NON-APPEARANCE WAS SATISFACTORILY EXPLAINED BY THE ASSESSEE AS APPELLANT AND ALSO AS RESPONDENT. IN V IEW OF THIS THE ORDERS ARE RECALLED FOR DECIDING THE A PPEALS ON MERITS. 5 2. IN RESULT THE APPLICATIONS IN RESPECT OF ALL TH E FOUR APPEALS ARE ALLOWED. 3. THIS ORDER WAS PRONOUNCED IN OPEN COURT ON 30.04 .2010 SOON AFTER THE CONCLUSION OF THE HEARING. THE PART IES WERE INFORMED THAT THE APPEALS SHALL BE HEARD ON 14.07.2010 FOR WHICH NO SEPARATE NOTICE SHALL BE IS SUED. SD/- SD/- ( R.P. TOLANI ) ( K.G. BANS AL ) JUDICIAL MEMBER ACCOUNTANT ME MBER DT.30.04.2010. NS COPY FORWARDED TO:- 1. APPLICANT 2. RESPONDENT 3. THE CIT 4. THE CIT (A) NEW DELHI. 5. THE DR ITAT LOKNAYAK BHAWAN KHAN MARKET NEW DELHI. TRUE COPY BY ORDER (ITAT NEW DELHI).