Asha Pushp Vihar Sahkari Awas Samiti Limited, v. Addl CIT Range-1,

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH FRIDAY DELHI) BEFORE SHRI G.E. VEERABHADRAPPA VICE PRESIDENT AN D SHRI A.D. JAIN JUDICIAL MEMBER MISC.APPLI.NOS. 59 TO 64(DEL)2010 (IN ITA NOS.4465 TO 4470(DEL)2007& 4601 TO 4606(DEL )07) ASSESSMENT YEARS: 1999-2000 TO 2004-05 ASHA PUSHP VIHAR SAHKARI AWAS SAMITI LTD. ADDL.CO MMISSIONER OF TAX SEC.14 KAUSHAMABI GHAZIABAD. V. RANGE 1 GHAZIABAD. (APPLICANT) (RESPONDENT) APPLICANT BY: SHRI AJAY SHARMA ADVOCATE RESPONDENT BY: SHRI AMR ENDER KUMAR CIT/DR ORDER PER A.D. JAIN J.M. VIDE OUR ORDER DATED 30.11.2009 ALL THE APPEALS FI LED BY THE ASSESSEE FOR ASSESSMENT YEARS 1999-2000 TO 2004-05 IN ITA N OS.4465 TO 4470(DEL)2007 WERE DISMISSED FOR NON-PROSECUTION SI NCE NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE SERVICE OF NOTICE OF HEARING. THE CORRESPONDING APPEALS OF THE DEPARTMENT IN ITA NOS. 4601 TO 4606(DEL)07 WERE DISMISSED ON MERITS. MA NOS. 59 TO 64(DEL)10 2 2. IN THE APPLICATIONS PRESENTLY BEFORE US IT HAS BEEN CONTENDED THAT NO NOTICE OF HEARING OF THE APPEALS WAS SERVED EITHER ON THE ASSESSEE OR ON THEIR COUNSEL; THAT HOWEVER A NOTICE SEEMS TO HAVE BEEN DELIVERED BY POST ON ONE SURENDER; THAT THE SAID PERSON NEVER CARED TO INFOR M THE ASSESSEE OR ANY OTHER RESPONSIBLE PERSON ABOUT THE DELIVERY OF SUCH NOTICE; AND THAT ACTUALLY THE SAID SURENDER IS ONLY AN OFFICE BOY HAVING NO A UTHORITY TO RECEIVE SUCH IMPORTANT LETTER/DOCUMENT OR ANY OTHER COMMUNICATIO N. AN AFFIDAVIT IN SUPPORT HAS BEEN FILED. OUR ORDER (SUPRA) HAS ON THESE FACTS BEEN REQUESTED TO BE RECALLED. 3. THE LEARNED COUNSEL FOR THE ASSESSEE HAS REITERA TED THE AFORESAID FACTS. 4. ON THE OTHER HAND THE LEARNED DR OPPOSING THE A PPLICATIONS HAS CONTENDED THAT AS PER CIT V. REGENCY EXPRESS BUILD ERS P. LTD. 291 ITR 55(DEL) SERVICE OF NOTICE ON OFFICE BOY IS A VALID SERVICE. 5. WE HAVE HEARD THE PARTIES. IN CIT V. REGENCY E XPRESS BUILDERS P. LTD.(SUPRA) THE NOTICE ISSUED U/S 143(2) OF THE I .T. ACT BY THE AO TO THE ASSESSEE WAS RECEIVED BY THE ASSESSEES EMPLOYEE G. AS PER THIS NOTICE THE DATE OF HEARING WAS 11.1.2001. THE ASSESSEES REPRESENTATIVE ATTENDED THE HEARING ON 11.1.2001. THE ASSESSMENT WAS COMP LETED U/S 143(3) OF THE ACT IN THE PRESENCE OF THE ASSESSEE/REPRESENTATIVE . BEFORE THE LD. CIT(A) THE ASSESSEE OBJECTED INTER ALIA THAT NO NOTICE W AS SERVED EITHER ON THE MA NOS. 59 TO 64(DEL)10 3 ASSESSEE OR ITS DIRECTORS OR ON ANY OF ITS AUTHOR IZED AGENTS. THE LD. CIT(A) INTER ALIA HELD THAT THE NOTICE HAD NOT BE EN SERVED ON A DULY AUTHORIZED PERSON. THE TRIBUNAL CONFIRMED THE CIT (A)S VIEW AND CANCELLED THE ASSESSMENT. THE HONBLE HIGH COURT SET ASIDE THE TRIBUNALS ORDER AND REMANDED THE MATTER TO THE CIT(A) TO CONS IDER THE MATTER AFRESH IN ACCORDANCE WITH LAW. IT WAS HELD THAT THE ASSESSEE HAD NOWHERE EITHER BEFORE THE AO OR BEFORE THE CIT(A) OR THE TRIBUNA L PLEADED THAT G WAS NOT ITS EMPLOYEE OR THAT HE WAS A FICTITIOUS PERSO N; THAT IF NO NOTICE HAD BEEN RECEIVED ON BEHALF OF THE ASSESSEE THERE WAS NO OC CASION FOR THE ASSESSEE OR HIS REPRESENTATIVE TO APPEAR BEFORE THE AO; THAT TH E FACT OF APPEARANCE BEFORE THE AO OF THE ASSESSEES REPRESENTATIVE SHOWED THA T THE NOTICE HAD BEEN DULY SERVED ON THE ASSESSEE THROUGH ITS REPRESENTAT IVE; AND THAT THEREFORE THE TRIBUNAL HAD ERRED IN OBSERVING THAT THE NOTICE HAD NOT BEEN SERVED ON THE ASSESSEE AND THE ASSESSMENT STOOD VITIATED. 6. IT IS SEEN THAT CIT V. REGENCY EXPRESS BUILDER S P. LTD.(SUPRA) TURNS ON ITS OWN FACT. AS NOTED ABOVE THEREIN IN PURSUANCE OF THE NOTICE APPEARANCE HAD BEEN PUT IN BY THE REPRESENTATIVE OF THE ASSESSEE BEFORE THE AO. THE HONBLE HIGH COURT HAS TAKEN NOTE THAT HA D THE NOTICE NOT BEEN SERVED THERE WAS NO OCCASION FOR THE REPRESENTATI VE OF THE ASSESSEE TO APPEAR BEFORE THE AO. IN THE ABSENCE OF THE NOTICE OBVIOUSLY THE FACTUM OF MA NOS. 59 TO 64(DEL)10 4 THE DATE OF HEARING BEFORE THE AO COULD POSSIBLY NO T HAVE COME TO THE KNOWLEDGE OF THE ASSESSEE. EVIDENTLY THESE ARE N OT THE FACTS OF THE MATTER BEFORE US. HERE NO APPEARANCE WAS PUT IN BY OR ON BEHALF OF THE ASSESSEE BEFORE THE TRIBUNAL IN RESPONSE TO THE NOTICE ISSUE D. CIT V. REGENCY EXPRESS BUILDERS P. LTD.(SUPRA) THEREFORE DOES N OT AID THE DEPARTMENT. IT ALSO CANNOT BE GAINSAID THAT THE APPEALS HAVING BE EN FILED BY THE ASSESSEE THE ASSESSEE DID NOT STAND TO GAIN BY NOT PUTTING I N APPEARANCE BEFORE THE TRIBUNAL AT THE TIME OF HEARING OF ITS OWN CASES. MOREOVER NO PREJUDICE WOULD BE CAUSED TO THE DEPARTRMENT IF THE APPEALS A RE RESTORED AND THE MATTER IS HEARD ON MERITS BY PROVIDING AN OPPORTUNI TY OF HEARING TO THE ASSESSEE IN ACCORDANCE WITH THE PRINCIPLES OF NATU RAL JUSTICE. 7. IN VIEW OF THE ABOVE THE GRIEVANCE OF THE ASSES SEE BY WAY OF THE PRESENT APPLICATIONS IS ACCEPTED. OUR ORDER DATED 30.11.2009 QUA THE ASSESSEES APPEALS IS RECALLED. ALL THE APPEALS OF THE ASSESSEE ARE RESTORED TO THEIR ORIGINAL NUMBERS IN SITU. OUR ORDER REGARD ING THE DEPARTMENTS APPEALS IS ALSO RECALLED. THESE APPEALS SHALL ALS O BE FIXED FOR HEARING ALONG WITH THE ASSESSEES APPEALS. SINCE THESE ARE CRO SS APPEALS THEY REQUIRE TO BE HEARD TOGETHER ON AFFORDING DUE OPPORTUNITY OF H EARING TO BOTH THE PARTIES. MA NOS. 59 TO 64(DEL)10 5 8. ALL THE APPEALS OF BOTH THE PARTIES SHALL NOW CO ME UP FOR HEARING ON MERITS ON 25.10.2010. NO FRESH NOTICE OF HEARING SHALL HOWEVER ISSUE SINCE THIS DATE WAS ANNOUNCED IN THE OPEN COURT IN THE PRESENCE OF BOTH THE PARTIES. 9. IN THE RESULT ALL THE APPLICATIONS FILED BY THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 13.8.2010. SD/- SD/- (G.E. VEERABHADRAPPA) (A.D. JAIN) VICE PRESIDENT JUDICIAL MEMBER DATED: 13.08.2010 *RM COPY FORWARDED TO: 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR TRUE COPY BY ORDER DEPUTY REGISTRAR