2019 (4) TMI 1619 - AT - Income Tax

Tribunal orders appeal restoration after finding notice of hearing returned due to insufficient address.

Pushpa Naresh Kumar Dhanania Versus The Income Tax Officer, Ward-17 (2) (5) Mumbai

The Tribunal allowed the miscellaneous application and ordered the restoration of the appeal for the assessee. The decision was based on the finding that ... Miscellaneous application within the time limit envisaged in Sec. 254(2) - Tribunal had dismissed the appeal of the assessee appellant by way of an ex-parte order - A.R explaining the reason leading to failure on the part of the assessee to put up an appearance on the stipulated date of hearing of the appeal for the reason that the assessee was not put to notice as regards the date of hearing of the appeal - HELD THAT:- As perused the material available on record. Admittedly, the notice intimating the date of hearing of the appeal to the assessee applicant was returned by the postal authorities with an endorsement of “insufficient address”. A.R had been able to substantiate his aforesaid contention by placing on record documentary evidence as had been gathered by him on an application filed with the Registrar, ITAT, Mumbai. When the assessee inadvertently was not put to notice as regards the date of hearing of the appeal, therefore, for the said reason he had failed to put up an appearance at the time of hearing of the appeal. In the backdrop of the aforesaid facts, we are of the considered view that in all fairness as per Rule 24 of the Appellate Tribunal Rules, 1963 the ex-parte order passed by the Tribunal on 21.06.2017 requires to be set aside and the appeal of the assessee be restored. Allow the miscellaneous application filed by the assessee applicant. Issues:1. Restoration of appeal due to failure to receive notice of hearing.Analysis:The present miscellaneous application was filed by the assessee arising from an order passed by the Tribunal in a specific case. The applicant contended that the appeal was dismissed by way of an ex-parte order as they were not notified of the hearing date. The authorized representative for the assessee explained that the notice was returned unserved due to an insufficient address provided. The representative presented evidence obtained from the postal authorities to support this claim. On the other hand, the Departmental Representative objected to the restoration of the appeal.After hearing both parties and examining the evidence, the Tribunal acknowledged that the notice of hearing was indeed returned due to an insufficient address. Considering the circumstances where the assessee was not properly notified of the hearing date, the Tribunal found it appropriate to set aside the ex-parte order and restore the appeal. This decision was made in accordance with Rule 24 of the Appellate Tribunal Rules, 1963, emphasizing the importance of fairness in such situations.As a result of the above considerations, the Tribunal allowed the miscellaneous application filed by the assessee and ordered the restoration of the appeal. The registry was directed to schedule the appeal for a fresh hearing, ensuring that the assessee would have the opportunity to present their case properly. The order was pronounced in the open court on 24.04.2019.