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TMI Blog1985 (7) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... Such telegram was received in the registry of the Tribunal on 30-4-1981, i.e., on the date of the hearing. The Bench on the basis of the said telegraphic request adjourned the appeals to 4-6-1981 and intimation to this effect was sent on 2-5-1981 through ordinary post. 3. When the appeals came up for hearing on 4-6-1981, though for the revenue, the departmental representative was present, there were no arrangements for representation from the assessee. The Tribunal passed two ex parte orders in relation to eight appeals, but we are concerned with only one, i.e., IT Appeal Nos. 1805, 1806, 1811 and 1812 (All.) of 1980 relating to the assessment years 1974-75 and 1975-76 and another one in respect of the other four appeals. 4. On 27-7-1981, the assessee moved a Misc. Application against the order in IT Appeal No. 1805 and others, which was numbered as Misc. Application No. 103 (All.) of 1981, contending that it had not received any notice from the Tribunal fixing the date of the hearing and, therefore, the order deserved to be cancelled. The hearing on the application took place on 17-12-1982 and vide order dated 30-12-1982, which is being reproduced below, it was rejected : "T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntimation did reach the assessee. The presumption of the service of a notice, in our opinion, arises only in the case of a registered letter and not in the case of an ordinary post. As the assessee did not receive the intimation regarding the fixation of its appeals on 4-6-1981, it did not make any arrangement for representation before the Tribunal on that date. The question now is whether non-intimation of the date of the adjournment is sufficient ground for us to recall our order passed ex parte against the assessee. We have gone through the decision of the Allahabad High Court in the case of Auto Sales. The legal position is clear that it is the duty of the assessee to find out as to what orders had been passed on the application for adjournment. Strictly legally, therefore, the Tribunal could proceed to dispose of the appeals ex parte against the assessee. However, the practice in the Tribunal has been to send such intimations practically in all the cases unless the assessee or its representative was present in the office of the Tribunal to note the date of adjournment. The Tribunal has also been treating such a non-intimation as a valid cause for recalling its orders. In our o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the assessee, conversion of interest into a new fixed deposit receipt amounted to its actual payment to the assessee. In our opinion, there is considerable force in this argument requiring reconsideration of the view taken in the assessee's own case in the assessment year 1973-74." 9. The present appeals, therefore, are the result of the abovesaid order of 13-1-1984 and the common contention is that the AAC, Lucknow erred in confirming the addition of Rs. 22,171 and Rs. 25,497 added in the related assessments for the two years. These additions flow from the rejection of the assessee's claim that it was following cash system of accounting in respect of its interest income. 10. It was accepted before us that the question of inclusion of similar interest came up for adjudication before the Tribunal in respect of the assessment year 1973-74 and decided in favour of the revenue vide order dated 20-1-1979 in IT Appeal No. 2163 (All.) of 1977-78. The submission, however, was that the principle of res judicata being not applicable, the Tribunal should have a fresh took on the facts. 11. For the assessment year 1973-74, the Tribunal decided the appeal against the assessee vide it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-D on accrual basis and another on receipt basis for the interest payable on the firm. It also proves that the assessee has not stuck to any regular method of accountancy. 19. On these facts and conduct of the business it can safely be concluded that the assessee is not maintaining the books of account on cash basis ; rather presumption is that the assessee is maintaining the books of account on mercantile basis." 12. Shri Markandey Katju, the revenue's standing counsel, appearing along with Smt. Roli Srivastava, the senior departmental representative, raised preliminary objections in writing which can be divided also in two portions as follows : (I) that the Tribunal is not competent to take a view different than the one taken in the assessee's own case, (II) that the Tribunal having passed a valid order on 30-12-1982 rejecting the assessee's Misc. Application No. 103 (All.) of 1981, the second order in respect of a fresh miscellaneous application in relation to the same order was a nullity. 13. Elaborating his contentions, he submitted that the Tribunal's view taken in the ex parte order being in conformity and consistent with the approach taken for the assessment year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is considered as wholly wrong. Within a statutory period, as provided under section 254(2) of the Income-tax Act, 1961 ('the Act'), it is open to the parties in appeal before the Tribunal to move miscellaneous application and it is precisely what happened in the present case. On 17-12-1982 the assessee only accepted that the hearing notice for 30-4-1980 was duly served and, therefore, the contention that it did not receive later intimation of adjournment of the appeals to 4-6-1981, cannot be said to be an inconsistent approach. We have given the related facts and reproduced certain portions of the order of the Tribunal dated 13-1-1984, with a purpose to show that on a given fact, any other view than the one taken by the Tribunal would have been wrong. It must be stated here that we have believed the assessee's counsel (Dr. Lall's) version that after appraising himself of the fact that the first miscellaneous application was made on wrong basis, he thought it advisable and fit to move a fresh application and that there was no concession of any kind that there was no grievance against ex parte order passed by the Tribunal. It has to be kept in mind and close focus that the second ..... X X X X Extracts X X X X X X X X Extracts X X X X
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