1983 (3) TMI 85 - AT - Income Tax

Summary

Issues:
1. Validity of notices and service of notices for hearing of appeals.
2. Justification of passing an ex parte order by the Tribunal.
3. Difference of opinion between the Members of the Tribunal.

Analysis:

1. Validity of Notices and Service of Notices:
The assessee-company filed two appeals before the Tribunal for the asst. yr. 1973-74 and 1975-76 challenging the orders of the CIT(A). The Tribunal passed an ex parte order on 13th November, 1981, as the assessee did not appear despite notice. The ld. Judicial Member found that a notice was properly served on the assessee, and hence, the appeals were rightly decided ex parte. However, the ld. Accountant Member disagreed, stating that there was no valid notice issued or served on the assessee. This difference led to the referral of the matter to the Third Member for resolution.

2. Justification of Passing an Ex Parte Order:
The ld. Judicial Member focused on whether there was a mistake apparent from the record in passing the ex parte order due to the assessee's absence without sufficient cause. On the other hand, the ld. Accountant Member emphasized that the Tribunal's decision to pass the ex parte order was not justified as there was no valid service of notices on the assessee. The ld. Accountant Member directed withdrawal of the Tribunal's order and allowed the Miscellaneous Petition, while the ld. Judicial Member rejected the application, stating that the assessee's absence without proper representation warranted the ex parte order.

3. Difference of Opinion:
The difference of opinion between the Members revolved around the validity of notices, service of notices, and the justification for the ex parte order. The ld. Accountant Member highlighted the lack of valid notice and service, leading to the order's withdrawal, whereas the ld. Judicial Member focused on the assessee's conduct and representation, concluding that there was no mistake apparent from the record. The Third Member resolved the issue by stating that the Tribunal was not justified in passing the ex parte order, emphasizing the necessity of proper notice and service for a fair hearing.

In conclusion, the Tribunal's ex parte order was deemed unjustified due to the lack of proper notice and service, leading to the withdrawal of the order and the allowance of the Miscellaneous Petition for a rehearing. The case was referred back to the original Bench for further proceedings in accordance with the law.