2019 (9) TMI 1576 - AT - Income Tax

Rectification application u/s 254 - applicant/assessee has stated that the assessee was not served by the notice of appeal as the address of the applicant/assessee has been changed - HELD THAT - Perusal of record reveals that hearing of appeal was fixed on 28.11.2018. The assessee was directed to be served through ld. DR for the revenue. Perusal of record further reveals that ld. DR for the revenue furnished report of Inspector from office of ITO-13(1)(1) Mumbai wherein it was reported that Inspector visited the address at B-16 Roopkamal S.V. Road Kandivali (W) Mumbai-67 however the door of premises was locked the notice of hearing was affixed (pasted). Before us assessee vehemently submitted that the assessee was not served with the notice and that they were not aware about the pendency of appeal. Considering the facts and circumstances of the case and the fact explained before us by ld. AR of the assessee that assessee was prevented by sufficient cause in not appearing when the case/appeal was taken up for hearing. Therefore we find a sufficient cause within the meaning of Rule 25 of Income Tax (Appellate Tribunal) Rules and recalls the order dated 16.01.2019. Misc. Application filed by assessee is allowed.

Summary

Issues:
Recall of order due to change in address and non-receipt of notice of appeal by the assessee.

Analysis:
The Miscellaneous Application (MA) under Rule 25 of Income Tax (Appellate Tribunal) Rules, filed by the assessee, sought to recall the order dated 16.01.2019 passed in ITA No. 3607/Mum/2017 for Assessment Year (AY) 2007-08. The applicant/assessee claimed that they were not served the notice of appeal as their address had changed from B-16, Roopkamal, S.V. Road, Kandivali (W), Mumbai to 601, Senate, Aura Biplex, S.V. Road, Borivali (W), Mumbai-92. The assessee only became aware of the order in March 2019 when the Assessing Officer required their appearance for set-aside proceedings.

The ld. AR of the assessee argued that the non-appearance during the appeal hearing was unintentional due to the address change, which was duly updated in the returns for A.Y. 2016-17 and 2017-18. It was emphasized that the assessee had a strong case on merit and would suffer if the order was not recalled. On the other hand, the ld. Sr. DR for the revenue contended that the notice of appeal was served through the ld. DR and was affixed at the old address of the assessee, as reported by an Inspector from the office of ITO-13(1)(1), Mumbai.

After considering the submissions and perusing the record, it was found that the notice of hearing was affixed at the old address of the assessee, but the door was locked. The assessee vehemently claimed non-receipt of the notice and lack of awareness about the appeal. The Tribunal, considering the facts and explanations provided, concluded that there was sufficient cause within the meaning of Rule 25 to recall the order dated 16.01.2019. Consequently, the order was recalled, and a new hearing was scheduled for 14.11.2019 by the regular bench, with the dispensation of issuing a new notice as the date was fixed in the presence of both parties.

In conclusion, the Miscellaneous Application filed by the assessee was allowed, and the order was recalled based on the grounds of non-receipt of the notice of appeal due to the change in address, leading to the non-appearance during the initial hearing.