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TMI Blog2004 (10) TMI 287X X X X Extracts X X X X X X X X Extracts X X X X ..... t". Thereafter, notice for subsequent dates of hearing was sent but nobody appeared on behalf of the assessee. On14th Aug., 2001, it was directed that the notice be served upon the respondent through the Departmental Representative. This direction was also repeated on several dates and ultimately the appeal was fixed for hearing on21st May, 2002, on which date also none appeared on behalf of the respondent. The Bench proceeded to hear the appeal, ex parte, qua the assessee, on merits. In para 5 of its order the Bench observed as under: "We have heard Shri Suresh Kumar, learned Departmental Representative for the Revenue. None appeared on behalf of the assessee despite notice sent through Departmental Representative on several occasions (s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... never raised by the Department in the grounds of appeal filed before the Hon ble Tribunal. The grounds of appeal raised in the memorandum of appeal are reproduced hereunder for ready reference." 5. Shri Piyush Kaushik, FCA appeared for the assessee/applicant, who was respondent in the appeal. The learned counsel made reference to the grounds taken in the miscellaneous application and further referred to the documents filed in the paper book including the affidavit of Shri Manoj Bavle. He has also made reference to the order of IT Department dt.23rd Feb., 2002passed under s. 131 of the IT Act. A copy of this order is available at p. 3 of the paper book. The learned counsel submitted that in view of rr. 24 and 25 of the ITAT Rules, the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ind Floor) 11-A, Vishnu Digamber Marg, New Delhi-110002, Tel: 0091 11 23232916, 23210891 Fax: 0091 11 23210594, 96" 8. This is further affirmed from the auditor s report in which also the fact narrating closure of liaison office w.e.f. March, 2002 has been mentioned. The learned counsel for the assessee, in support of his arguments and submissions placed reliance on the ratio of decision in the case of CIT vs. Ansal Housing Construction Ltd. (2004) 190 CTR (Del) 172 : (2004) 140 Taxman 297 (Del). 9. After carefully considering the entire relevant material and in particular the unrebutted affidavit of Shri Manoj Bavle, we find sufficient force in the contentions raised on behalf of the assessee before us. On the basis of the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1977) 110 ITR 27 (All). In that case it was observed that according to s. 282 of the IT Act, a notice has to be served either by post or as if it were a summons issued by a Court under the CPC. The following observations were also made in that case: "When service by affixture can be restored under IT Act? According to s. 282 of the IT Act, a notice has to be served either by post or as it were a summons issued by the Court under the CPC. If the notice is not sent by post, it can be served as provided by O. 5, r. 20 of the CPC. However in order to invoke this provision certain conditions must exist, i.e., the Court should be satisfied that the defendant is avoiding the service of the notice. The fact that the process server could not fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s report or in the affidavit filed by him that he personally knew the place of business of the assessee. The assessee, however, claimed that they had closed their business long before the notice were issued. On writ petitions filed by the assessee, the High Court held that there was no proper service on the assessee and the orders of the CIT pursuant thereto could not be sustained. 13. It is also a settled legal position that before service by affixture is accepted, the Court should satisfy itself of the conditions set out in r. 17, of O. 5 of CPC. In the case of Gurana vs. Kshese AIR 1944 P. 247, it was held that where there is no evidence to show that there was any enquiry as to whether there was any local agent or relative competent to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sufficient cause for his non-appearance when the appeal was called on for hearing the Tribunal shall make an order setting aside the ex parte order and restore the appeal." 16. In the case of Ansal Housing Construction Ltd., the Hon ble jurisdictional High Court of Delhi has held that if the assessee-appellant satisfies the Tribunal that there was sufficient cause of his non-appearance when appeal was called for hearing, the Tribunal may set aside ex parte order and restore the appeal for disposal in accordance with law. 17. In the instant case from the circumstances narrated by the learned counsel for the assessee and from the material on record, we are convinced that there existed a reasonable and sufficient cause on the part of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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