Research › Search › Judgment

Bombay High Court · body

2018 DIGILAW 2284 (BOM)

Lalitnirman Business Development Pvt. Ltd. v. Income Tax Officer, Ward 1(3) Nashik

2018-09-19

B.P.COLABAWALLA, S.C.DHARMADHIKARI

body2018
JUDGMENT S.C. Dharmadhikari, J. - This appeal of the assessee arises out of the order passed by the Income Tax Appellate Tribunal, Bench at Pune dated 29th April, 2015. 2. The appeal preferred by the Revenue and the cross objection of the appellant-assessee before us were heard together. In paragraph 5 of the order under appeal, it is held as follows : "5. The matter was being adjourned from day-today at the request of the counsel of the assessee, who on 10.09.2014 withdrew his power of attorney vide letter dated 12.06.2014. Thereafter, the notice was issued to the parties to appear on 01.01.2015. None appeared on behalf of the assessee on 01.01.2015 and the learned Departmental Representative for the Revenue was directed to serve the notice for hearing on 20.04.2015. The said notice was served upon the assessee. However, none appeared on behalf of the assessee on the appointed date of hearing nor any application was moved for adjournment. Hence, we proceed to decide the present appeal after hearing the learned Departmental Representative of the Revenue." 3. We are informed by both counsel that the appellant before us preferred an application seeking rectification of the mistake and, in any event, recall of the order for the simple reason that the impugned order is passed in its absence. 4. Once the order was passed in its absence, then, the expectation of the assessee was that by imposing reasonable conditions, it can be furnished and afforded a fresh opportunity to argue the matter on merits. That rectification application is still pending. It remains undecided. 5. Though the assessee proposes several questions on merits of the findings and conclusions in the impugned order, ordinarily entertaining such an appeal and keeping it pending would not subserve the interest of justice. Eventually, if a remand is necessitated, then, that would have to be ordered, but after losing precious judicial time. 6. After having perused the order under appeal and finding that it has dealt with several grounds, but the appellant had no opportunity to put forward its case or version on merits, we are of the considered view that in the facts and circumstances peculiar to this case, the order under appeal deserves to be quashed and set aside. That is quashed and set aside only on the short ground that the impugned order violates the principles of natural justice. That is quashed and set aside only on the short ground that the impugned order violates the principles of natural justice. Once the representative for the assessee withdrew his power of attorney, a notice was issued to the parties to appear, but without ascertaining whether that notice was duly served on the assessee, there is a proof of such service and the assessee has avoided intentionally and deliberately to attend the case or hearing, the Tribunal should not have proceeded further. Such an approach results in miscarriage of justice as well. 7. On the above short ground we quash and set aside the impugned order. Income Tax Appeal No.840/PN/2012 and Cross Objection No.35/PN/2013 shall now be heard afresh by the Pune Bench of the Income Tax Appellate Tribunal. At this fresh hearing, it shall pass a reasoned order consequent upon the submissions of both sides being heard, the contents of the documents and record being noted. The fresh order shall be passed, uninfluenced by any conclusions in the earlier order which is set aside. 8. The appeal, accordingly, succeeds. There will be no order as to costs. 9. The Income Tax Appellate Tribunal now need not pass any orders on the application for rectification. That stands disposed of.