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| DATE: | (Date of pronouncement) |
| DATE: | May 2, 2012 (Date of publication) |
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| Click here to download the judgement (Rachana_Constructions_dept_apathy.pdf) |
Dept’s appeal dismissed owing to ‘apathy’ in serving notice of hearing
Notice of hearing of the department’s appeal could not be served on the assessee through post at the address given in Form 36. The DR was accordingly directed to directly effect service of the notice of hearing on the assessee. On the date of hearing, the DR was unable to say whether service was effected or not. HELD by the Tribunal dismissing the appeal:
The department has shown total apathy in the matter of service of notices of hearing. The opportunity of hearing to the other side is essential before adjudicating appeal for which service of notice is condition precedent. It is the established practice and procedure that in case notices of hearing cannot be served on the assessee in revenue’s appeals, such notices are got served through Income-tax authorities. This practice is based on considerations of expediency and equity and is fully in conformity with the judicial powers and jurisdiction of the Tribunal and does not run contrary to any provisions of the Statute. It is within the incidental or implied powers of the Tribunal as enunciated in M.K. Mohammed Kunhi 71 ITR 815 (SC) & Paras Laminates 186 ITR 722 (SC). Accordingly, the Tribunal was within its powers to direct, and it was obligatory on the part of the I.T. authority, to effect service of notice of hearing on the assessee since the service could not be effected by post at the address given by the revenue in the memorandum of appeal since the department, as an executive organization, is well equipped with the requisite staff strength of Notice Server, Income-tax Inspector etc. for serving various statutory notices on the tax payer. Since the revenue has shown apathy with regard for serving the notices of hearing on the assessee and has also not made any request to get the notice served by alternate way i.e., by way of publication etc as laid down in rule 20 of CPC, there is no alternative but to dismiss the appeal (Aditya Organisers 91 ITD 342 (Ahd) followed)
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