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TMI Blog2017 (9) TMI 741X X X X Extracts X X X X X X X X Extracts X X X X ..... y of hearing to the assessee, the resultant effect unintended or indirectly is that the petitioner's declaration of the Scheme becomes valid, so be it. The tax amnesty schemes are neither unknown nor uncommon. The legislation often times comes up with Schemes to reduce tax litigations offering reduced tax or immunity from penalty or prosecution, the prime purpose being reduction of pending taxation related litigation. The idea behind promulgation of the Scheme is not to make the Scheme and then to deny the benefit of the Scheme to as many people as possible. The idea is always to give the benefit of the Scheme to one who is otherwise eligible, makes the declaration and fulfills all conditions of the Scheme. Under the circumstances, impugned orders AnnexureB to both the petitions by which the appellate Commissioner disposed of the respective appeals, are set aside. The appeal proceedings for the assessment years 2007-2008 and 2011-2012 are revived and placed back before the appellate Commissioner Resultantly, the impugned orders at AnnexureA in both the petitions by which the designated authority had rejected the petitioner's declaration under the Scheme are also set aside. The d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al against the order of penalty before the appellate Commissioner on 26.10.2015. When this appeal was pending, the Government of India framed the scheme under Chapter X of the Finance Act, 2016. The Scheme provides for an opportunity to the assessees under litigation to settle the disputes with the department under certain circumstances and subject to certain conditions. We will take note of the relevant provisions of the Scheme later. Suffice it to note that the Scheme was notified on 26.5.2016 and was brought into force with effect from 1.6.2016. The assessees interested in availing the benefit of the Scheme would have to make a declaration on or before 31.12.2016 which date was later extended upto 31.1.2017. 5. It has come on record that the petitioner's appeal against the order of penalty came to be dismissed by the appellate Commissioner by an order dated 2.6.2016. The order records that despite being given opportunity to represent by issuance of two notices, no one appeared for the petitioner and, therefore, the Commissioner had proceeded exparte and rejected the appeal. According to the petitioner, neither of these two notices were received by the petitioner nor was t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant before the appellate Commissioner the expression to give notice must carry the meaning to serve notice . Counsel also criticised the action of the appellate Commissioner to dispose of the appeal on 2.6.2016 when the Scheme of amnesty was brought into effect from 1.6.2016. Counsel would suggest that the disposal of the appeal of the petitioner in hot haste was only in order to deprive the petitioner from availing the benefit of the Scheme. There was no reason why the Commissioner should have disposed of the appeal only a day after the Scheme was promulgated, that too, without verifying whether the petitioner was served with notices of the hearing or not. 8. On the other hand, learned counsel Ms. Mauna Bhatt opposed the petitions contending that section 250 of the Act requires the appellate Commissioner to give notice to the assessee which cannot be equated with the requirement of actual service of notice. Whenever service of notice was found necessary the legislature has used such expression. The department had dispatched two notices at the address supplied by the petitioner through Speed Post. The order of rejection of the appeals was also sent on the same addre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17 passed by the designated authority rejecting the petitioner's applications under the Scheme cannot be faulted. The inquiry before the said authority was brief namely, whether the appeal of the declarant was still alive, atleast on the date when such declaration was made. When the Principal Commissioner of Incometax found from the record that the appeal was already dismissed on 2.6.2016 by the appellate Commissioner, he was perfectly justified in conveying to the petitioner that the petitioner cannot avail the benefit of the Scheme as this was the only course open to the authority. On the other hand, if we come to the conclusion that the Commissioner(Appeals) was not justified in deciding the petitioner's appeal exparte, the entire complexion would change. The appellate order would then have to be set aside and appeal would have to be revived. The revival of the appeal would obviously relate back to the original date when the appellate Commissioner dismissed the same. The consequence of such an action by the Court would be that when the petitioner made the declaration before the designated authority, the appeal would be deemed to be alive and in such a situation, the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in appeal. 250. (1) The Commissioner (Appeals) shall fix a day and place for the hearing of the appeal and shall give notice of the same to the appellant and to the Assessing Officer against whose order the appeal is preferred. (2) The following shall have the right to be heard at the hearing of the appeal (a) the appellant, either in person or by an authorised representative; (b) the Assessing Officer, either in person or by a representative. (3) The Commissioner (Appeals) shall have the power to adjourn the hearing of the appeal from time to time. (4) The Commissioner (Appeals) may before disposing of any appeal, make such further inquiry as he thinks fit, or may direct the Assessing Officer to make further inquiry and report the result of the same to the Commissioner(Appeals). (5) The Commissioner (Appeals) may, at the hearing of an appeal, allow the appellant to go into any ground of appeal not specified in the grounds of appeal, if the Commissioner (Appeals) is satisfied that the omission of that ground from the form of appeal was not wilful or unreasonable. (6) The order of the Commissioner(Appeals) disposing of the appeal shall be in writing and shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal is preferred. As per subsection( 2) of section 250, the appellant in person or through an authorised representative and the Assessing Officer or his representative would have a right to be heard at the hearing of the appeal. Under subsection( 4) of section 250, the Commissioner(Appeals) is empowered to make such further inquiry as he thinks fit or to direct the Assessing Officer to make further inquiry. Under subsection( 5) of section 250 the Commissioner may allow raising of additional grounds not specified in the grounds of appeal. Subsection( 6) of section 250 requires that the order of Commissioner disposing of the appeal would be in writing and would state the points for determination and the decision thereon of the Commissioner along with the reasons for the decision. Under subsection( 7) of section 250, upon disposal of the appeal, the Commissioner is required to communicate the order to the assessee and to the department authorities mentioned therein. 16. The Commissioner while exercising the appellate powers thus decides important issues concerning the assessee as well as the Revenue. The requirement of hearing which would even otherwise be inbuilt in exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing reasons. We have noticed that the Commissioner (Appeals) having issued two notices dated 22.3.2016 and 23.5.2016 to the assessee, proceeded to decide the matter exparte since the assessee did not respond to either of these two notices. The assessee however, contends that such notices were never served and the assessee therefore, was naturally unaware about the date of hearing fixed by the appellate Commissioner. The petitioner assessee has filed an affidavit making such averments. The department though has produced documents showing that the notices were dispatched through Speed Post at the address given by the assessee and which averment we have no reason to doubt, is not in a position to show the proof of actual service of the notices. Under normal circumstances, we would have readily accepted the assessee's request for remand of the proceedings to enable the assessee to make full participation in the appeal before the Commissioner so that the assessee may be heard by the Commissioner before the fresh order could be passed. That would be the most natural and reasonable order the Court would pass in facts and circumstances of the case. The only question is merely becau ..... X X X X Extracts X X X X X X X X Extracts X X X X
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