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TMI Blog2018 (1) TMI 935X X X X Extracts X X X X X X X X Extracts X X X X ..... O and the ld CIT(A) and thereafter, has decided the matter. The decision of the Coordinate Bench was rendered on merit of the case and nothing has been brought on record which shows any mistake which is apparent from the record. - MA No.03, 04 & 05/JP/2014 (Arising out of ITA No. 1335, 1336 & 1337/JP/2010) - - - Dated:- 18-1-2018 - Shri Vijay Pal Rao, JM And Shri Vikram Singh Yadav, AM Assessee by : Shri Mahendra Gargieya(Adv.) Revenue by : Shri R. A. Verma ( Addl.CIT) ORDER Per : Vikram Singh Yadav, A. M. This present miscellaneous applications have been filed by the assessee, Late Surajmal Jain through his legal heirs Smt. Nirmala Jain, Rajendra Kumar Jain and Manoj Kumar Jain against the order passed by the Co-ordinate Bench dated 16.09.2011 for AYs 2006-07, 2007-08 and 2008-09. 2. In their misc. petition filed with the Registry on 22.04.2014, they have stated as under:- 2. That Hon ble ITAT in para 2.3 at page 2 onwards has mentioned that the appeal was fixed on certain dates and the record shows that the fixation notice has been served upon the assessee, the acknowledgement of which is available on record however, none appeared. Therefore, Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Jain Manoj Kumar Jain, sons, who are fully conversant with the facts of the case, is enclosed herewith is enclosed herewith and marked as Annexure-2 . 3. During the course of hearing, the ld. AR submitted that after filing the above MAs, they have carried out an official inspection of the record of the Hon ble ITAT on 23.04.2015, so as to gather correct facts and our submission in furtherance to these MAs is as under: 1. A perusal of the record shall reveal that notice/s hearing were sent through Registered AD only on two occasions only viz firstly, before 20.07.2011 when somebody received and put his initial but it is not ascertainable that who received this notice. Thereafter, another notice was sent before 12.09.2011 and the Registered AD shows signature of one Smt. Nirmala Bai. Assuming that she is the wife of Late Shri Surajmal Jain, we have filed an affidavit dated 18.05.2015 of Smt. Nirmala Devi w/o Late Shri Surajmal Jain duly sworn in vide letter of 29th May, 2015 wherein, she has averred because of being old aged and sufferings she was not able to recollect if any notice at all was received by her or not but at the relevant point of time her husband was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee, was accepted. Under this background, the rectification done by the ITAT was confirmed. 4.2 In case of service on wife there is direct decision in case of Sohan Lai Gupta vs. ITO (2004) 2 SOT 0073 (Agra Trib) held that: Notice-Service-Validity-Notice served on wife of assessee who failed to hand over the same to the assessee was served on unauthorised person, hence service was not proper-Order of Tribunal dismissing the appeal in default needed to be recalled 4.3 In case of Shri Pritam Singh Oberoi vs. ITO in M.A.No.12 (Luc.)/2010 where the assessee being out of station instructed his wife to deliver notice to his counsel which however, could be given late, the order passed was recalled as there was a reasonable cause. 4.4 In CIT vs. Hemla Hoziery Dyeing Printing Mills (P) Ltd. (2006) 286 ITR 646 (Del.) it was held that: Appeal (Tribunal)-Recalling of ex parte order-Reasonable cause for non- appearance at the hearing-Tribunal has recorded a clear finding of fact that the notice regarding the hearing of the appeal was not properly served upon the appellant in one appeal and the respondent in the other-Therefore, non-appearance of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duly served on the assessee is not correct. It was further submitted that even though the order has been passed by the Co-ordinate Bench ex-parte qua the assessee, at the same time, the order has been passed on merit after taking into consideration all relevant facts and circumstances of the case. It was accordingly submitted that the miscellaneous applications so filed by the assessee should not be entertained. 5. We have heard both the parties and also perused the material available on record. Firstly, the contention of the assessee that since there was strong ground available on which the ld. CIT(A) granted relief, it was never expected by the assessee that the department would be going in second appeal before the Tribunal cannot be accepted. Mere expectation that the Revenue, which has an equal right to appeal against the order of the ld. CIT(A), will not go in further appeal before the Tribunal cannot be a basis for non appearance once the appeal by the Revenue has been filed, the matter is listed for hearing and notice stating the scheduled date of hearing sent and duly served on the assessee to allow him an opportunity to represent his matter. It is incumbent upon the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avit of wife of the assessee filed with the present misc. petition, exactly same address has been mentioned. Therefore, there cannot be any dispute in terms of incorrect or incomplete address at which the notices have been sent. 9. Unlike the miscellaneous petition where the assessee has contended that neither the assessee nor anybody else authorized, in this behalf received any notice on any occasion scheduling the hearing in the matter before the Tribunal, the ld. AR has stated in his written submission that the notice sent by the Registry of the Tribunal scheduling the hearing for 12.09.2011, the registered AD shows signature of one Smt. Nirmala Bai. This again proves that the notice was duly served and Smt Nirmala Bai/Devi who is the wife of the assessee received the same on his behalf. Therefore, service of proper notice on the assessee scheduling the date of hearing cannot be disputed. 10. We now refer to the averments made in the affidavit of Smt. Nirmala Devi, the wife of the assessee. She has stated in her affidavit that because of her old age, she was not able to recollect if any notice was received by her or not. But at the relevant time, her husband was temporaril ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndered on merit of the case and nothing has been brought on record which shows any mistake which is apparent from the records. 12. Further, it is observed that in its misc. petition, it has been stated that even the ITAT order dated 16.09.2011 was not received but the assessee came to know of the same later on. When the assessee actually received it or came to know about it is not stated. The order of the Tribunal was dispatched on 19.09.2011 at the given address and there is nothing on record to show that the same was returned undelivered. From the said date of the order to the day the assessee expired on 7.3.2014, there is again complete silent as to why no action was taken by the assessee to recall the ex-parte order if he was so prejudiced with the said order. Then, on 22.04.2014, a misc application is filed by the legal heirs with the Registry requesting for recall of the order passed by the Coordinate Bench. The reason why we are stating all these facts is that the assessee cannot plead his case of reasonable cause for not attending the proceedings when subsequent to closure of the proceedings and passing of the order, he again remained silent and then towards the fag end ..... X X X X Extracts X X X X X X X X Extracts X X X X
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