2018 (1) TMI 935 - AT - Income Tax

Legal heirs' applications dismissed, ITAT's ex-parte order upheld. Notices served, no reasonable cause for non-appearance.

Shri Surajmal Jain Versus DCIT Central Circle-03 Jaipur

The Tribunal dismissed the miscellaneous applications filed by the assessee's legal heirs, upholding the validity of the ex-parte order passed by the ... Rectification of mistake - coordinate bench deciding the matter ex-parte qua the assessee - Held that:- In the facts and circumstances of the case and based on material available on record, the notices scheduling the date of hearing have been duly served on the assessee. Where the assessee chooses to remain silent by way of either not attending to the proceedings or authorizing any person to attend the proceedings on his behalf, the Tribunal cannot be expected to wait for eternity before it decides to take up the matter especially in light of huge pendency of cases. No doubt the assessee has a right to be heard but the same is not an absolute right and it comes with added responsibilities in terms of timely attending to the proceedings as so fixed by the Tribunal. Where inspite of number of opportunities being granted to him, the assessee failed to appear and represent its case, we don’t think the Coordinate Bench has erred in deciding the matter ex- parte qua the assessee. In any case, the Coordinate Bench has heard the ld DR and also taken into consideration the decision of the AO 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. Issues Involved:1. Non-receipt of hearing notices by the assessee.2. Validity of the ex-parte order passed by the ITAT.3. Request for recall of the ITAT order based on alleged procedural lapses and principles of natural justice.Issue-wise Detailed Analysis:1. Non-receipt of hearing notices by the assessee:The assessee contended that neither he nor anyone authorized by him received any notice for the ITAT hearing. The Tribunal's order detailed that multiple notices were sent through registered AD to the address provided by the assessee, and acknowledgements were on record. Particularly, notices dated 20.07.2011 and 12.09.2011 were acknowledged, with one signed by the assessee's wife, Smt. Nirmala Bai. The Tribunal found no evidence of incorrect or incomplete address and noted that none of the notices were returned unserved. Therefore, the Tribunal concluded that the notices were duly served.2. Validity of the ex-parte order passed by the ITAT:The Tribunal emphasized that the ex-parte order was passed after multiple notices were duly served and the assessee failed to appear. The Tribunal highlighted that it cannot indefinitely wait for the assessee to appear, especially given the high volume of pending cases. The Tribunal also noted that the order was passed on merit after considering the arguments and records presented by the Revenue. The Tribunal referenced the principle that the right to be heard is not absolute and must be exercised responsibly by attending scheduled proceedings.3. Request for recall of the ITAT order based on alleged procedural lapses and principles of natural justice:The assessee's legal heirs requested the recall of the ITAT order, alleging that the order was passed without giving the assessee a fair opportunity to be heard, thus violating the principles of natural justice. They cited several case laws supporting the recall of ex-parte orders due to improper service of notices. However, the Tribunal found that the notices were properly served and that the assessee's wife failed to inform him due to her old age and health issues. The Tribunal also noted the lack of corroborative evidence supporting the claim that the assessee was residing elsewhere. The Tribunal concluded that the assessee had ample opportunity to attend the hearings but chose not to, and thus the ex-parte order was justified.Conclusion:The Tribunal dismissed the miscellaneous applications filed by the assessee's legal heirs, concluding that there was no basis for recalling the ex-parte order passed on merit. The Tribunal emphasized that the notices were duly served, and the assessee failed to appear despite multiple opportunities. The Tribunal also noted the significant delay in filing the miscellaneous applications and found no reasonable cause for the non-appearance of the assessee.Order:All the miscellaneous petitions for the respective assessment years were dismissed. The order was pronounced in the open court on 18/01/2018.