TaxTMI 
TaxTMI 
TaxTMI 
2018 (1) TMI 935
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....onfirming the addition made. 3. In this connection, it is very humbly submitted that the AO made huge additions which were substantially reduced by the Id. CIT(A) in the first appeal. Since there was a strong ground available on which the Id. CIT(A) granted relief hence, it was never expected that the department might be going in second appeal before the Hon'ble ITAT. It appears that thereafter, the department has challenged this order in second appeal. Unfortunately however, the appeal memo or any other information, to the best of his knowledge and belief, was never served upon the assessee or anybody else authorized for this purpose. Even thereafter, the assessee never received any notice on any occasion. Neither the assessee nor anybody else authorized for this purpose received any intimation. Even the ITAT order was not received by the assessee but the assessee came to know of the same later on. It is further submitted that the assessee-respondent had been made to suffer because no opportunity of being heard was given to the assessee and thus, its valuable right has been prejudiced. It is not the case that the hearing was fixed on various occasions and the assessee- respond....
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....ing some notice she might have received. Notably there appears no evidence of service of notice upon the late assessee, in any case. 2. Further a perusal of the record shall reveal that it is not a case where various opportunities were granted to the respondent who, deliberately avoided the receipt thereof or to present itself for hearing, its conduct was not contumacious. 3. The receipt of the notice/s is otherwise appears to be doubtful in as much as the correct and complete address is Shri Surajmal Jain, Near Girls School, Behind Shwetambar Jain Temple, Ramganj Mandi, Kota however, the address shown in the ITAT order is simply Shri Surajmal Jain, Near Girls School, Ramganj Mandi, Kota. Therefore, there are all the chances of no service at all or an improper service of the notice. Lastly, in any case, the facts remain that after deletion of a substantial amount by the ld. CIT(A), the assessee could have never ventured to be absent before the Hon'ble ITAT and when the revenue has challenged such deletion. He was not going to gain any advantage by keeping himself absent. Hence, in the larger interest of justice and to do a substantial justice to the humble applicant responden....
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....calling the order passed by it-No substantial question of law arises" 4.5 In Rajesh Rajmani Singh vs. ITO (2013) 35 CCH 334 (Mum Trib) held that: "Appeal(Appellate tribunal)-Recalling of order-Ex-parte order passed against assessee on account of non-appearance of counsel-Assessee under bonafide belief that matter will be attended properly by his counsel-Reasonable cause shown for non-appearance-Ex-parte order recalled-Appeal filed by assessee is allowed. " 4.6 In the case of Santosh Singla vs. ITO (2012) 77 DTR 438 (Del.), the Hon'ble Delhi High Court even in a case where application u/s 254(2) was filed after four years, directed the tribunal to examine the correctness of assessee's contention of nonservice/ non awareness of the date of hearing and to pass an order afresh, which goes to show that a proper and valid service of notice of hearing to the parties has been seen very seriously. 4.7 In the case of CIT vs. P.V.Kumar (2005) 199 CTR 429 (Del.), the ITAT order was set-aside to be decided afresh even when the recipient had left the place without notifying the ITAT. 4.8 Further in the case of M/s Rajeswari Hospital vs. ITO in I.T.A. No.202 /Coch/2014) despite ....
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....n the assessee or anybody else authorized by him and no notice on any occasion has been received either by the assessee or anybody else authorized in this behalf and even the order of the ITAT was not received by the assessee. In this regard, firstly, the order passed by the Co-ordinate Bench at Para 2.3 which is reproduced below is self speaking and does not require any further elaboration. "2.3 The appeals have been fixed on 09.02.2011, 26.05.2011, 20.07.2011 and 12.09.2011. The records show that the fixation notice has been served upon and the acknowledgements are available on record. We are therefore, deciding the appeals after hearing the ld. DR and perusing the records." 7. Further, from perusal of the order sheet and material available on record, it is observed that the hearing in the matter was first listed for hearing on 09.12.2011 and the notice was sent on 17.01.2011 through registered AD. Subsequently on 09.12.2011, the matter was adjourned and listed for fresh hearing for 01.04.2011 and the notice was sent through registered AD on 23.02.2011. Thereafter, another notice was sent on 25.04.2011 scheduling the hearing for 26.05.2011. Thereafter another notice was sent o....
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....tices have been issued to the assessee from time to time informing him about the scheduled date of hearing. None of the notices have been returned unserved by the postal authorities. In respect of two of the notices, registered AD is on record and on one such registered AD, signature of wife of the assessee is also mentioned as also admitted by the assessee. In her affidavit, wife of the assessee has submitted that the assessee was not staying at the given address and was staying with their son at Agra and because of her old age and health problems, she failed to inform her husband about the receipt of such notice and there is nothing deliberately or consciously done by her in terms of not informing her husband. There is nothing on record to corroborate the averments so made in her affidavit in terms of the assessee not staying at the given address or staying with their elder son at Agra. There is no affidavit filed by the elder son Shri Rajendra Kumar Jain who also happens to be the legal heir brought on record and signatory to the present misc. applications confirming the said fact. In the facts and circumstances of the case and based on material available on record, the notices ....