2012 (8) TMI 513 - AT - Income Tax

Non serving of notices of hearing to assessee - Held that - As no intimation was given by the Departmental Representative whether service of the notice had been effected on the assessee or not the appeals of the Revenue could not be heard on merit in absence of proper service of notice upon assessee - it was obligatory on the part of the Income-tax 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. The practice of getting the service of notice effected on the respondent assessee in a revenue s appeal wherein notices of hearing could not be served on the assessee by post is fully in conformity with the judicial powers and jurisdiction of the Tribunal and does not in any manner run contrary to any provisions of the Statute - The Tribunal was therefore well within its powers to direct the Income-tax department to effect service on the assessee - once revenue is not able to get exact address of assessee, how it will follow the same, in case matter is decided in favour of revenue - against Revenue.

Summary

Issues:
- Proper service of notice for hearing in revenue's appeals
- Adjudication proceedings as per requirements of section 254(1)
- Practice of getting service effected on respondent assessee in revenue's appeal
- Judicial powers and jurisdiction of the Tribunal
- Incidental or implied powers of the appellate authority
- Powers necessary for effective exercise of substantive power

Analysis:
The judgment by the Appellate Tribunal ITAT, Pune, involves appeals by the revenue against the orders of the CIT(A), Aurangabad, for A.Ys. 2005-06 and 2007-08. The issue primarily revolves around the proper service of notice for hearing in revenue's appeals. It is noted that the notices of hearing were sent to the assessee, but the service was not confirmed by the Departmental Representative during the hearing dates. The Tribunal emphasized the importance of providing an opportunity of being heard before adjudicating an appeal, as mandated by section 254(1). Due to the failure in serving the notice on the respondent assessee, the appeals could not proceed on merit, highlighting the necessity of proper address details for expeditious adjudication of tax disputes.

Furthermore, the judgment discusses the practice of getting the service effected on the respondent assessee in revenue's appeals when notices cannot be served through regular means. This practice is deemed acceptable and in line with the judicial powers and jurisdiction of the Tribunal. The Tribunal cited legal principles emphasizing that where a substantive power is conferred, all necessary incidental and ancillary powers must be inferred for effective exercise of the substantive power. The Tribunal's decision to direct the Income-tax department to effect service on the assessee was deemed appropriate, considering the circumstances and the revenue's failure to provide an accurate address for the assessee.

The judgment also references legal precedents and Supreme Court decisions to support the Tribunal's authority to ensure proper service of notices and exercise incidental powers for effective adjudication. It highlights that the Tribunal can seek procedural help from relevant provisions, such as the Civil Procedure Code, when required. Ultimately, the Tribunal dismissed the revenue's appeals due to the failure in serving notices but granted the revenue the opportunity to recall the order if the assessee is traced within a reasonable time. This decision aligns with previous rulings and reinforces the importance of adhering to procedural requirements for fair adjudication in revenue's appeals.