2003 (6) TMI 434

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..... nfirming penalty levied under section 271(1)( c ) at Rs. 2,25,000. 2. In the application under reference, the respondent assessee has mentioned that after receipt of the ex parte order, inspection of Tribunal s file was taken and noted that the appeal filed by the assessee was adjourned sine die on 4-5-2000, subsequently a notice of hearing fixing the appeal on 31-7-2002 was issued. This notice was returned unserved as the assessee s shop was found closed. Another notice of hearing was issued and this notice was purported to have been received by the assessee s wife Smt. Usha Rani on 28-4-2001. It is further mentioned that the notice received by the assessee s wife Smt. Usha Rani never reached the assessee. The lady does not remembe .....

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..... eceive the notice. The service was made through the Inspector of the Income-tax which can be said that no effective service of the notice of hearing was made. It is further submitted that the ITAT has inherent power to recall the matter. 5. The learned D.R., on the other hand, argued that the address mentioned in column 11 of Form 36 under rule 47(1) of Appellate Tribunal Rules, proprietary concern of the assessee always found closed. Therefore, at the given address the notice could not be served. Hence the notice was served on assessee s wife which is valid service of notice. In support of her submission she cited decision of ITAT, Agra Bench in the case of Chandra Bhan Bansal v. Dy. CIT [2001] 79 ITD 639. It is held that notice is .....

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..... urt in CIT v. ITAT 1966 UPTC 1081 in which it was held that the Tribunal had no power to recall an order passed under section 256(1) rejecting an application requiring the Tribunal to make a reference to the High Court. I have gone through this judgment and I am of the view that the same is restricted to the effect of the rejection of the application under section 256(1) and does not cover a situation like the present one. A person whose application under section 256(1) has been rejected by the Tribunal has another opportunity of making an application to the High Court itself under section 256(2). There is a direct judgment of this Court on the point. In Bhagwan Radha Kishen v. CIT [1952] 22 ITR 104, a Division Bench of this Court .....

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