THE I.T.O. Vs. SHIVAM DEVELOPERS

JUDGEMENT

(1.) THIS appeal has been filed by Revenue against the order of the Commissioner of Income Tax (Appeals) -II, Baroda for A.Y. 2007 -08.

(2.) THE notice of hearing was sent to the assessee through the Departmental Representative for effective service on the respondent assessee. However on the date of hearing no intimation was given by the learned Departmental Representative whether service of the notice had been effected on the assessee or not. Last such notice of hearing fixing the date of hearing as 28.01.2015 was handed over to the Departmental Representative well in advance of the date of hearing. However when the appeal was called on for hearing, none put in an appearance on behalf of the respondent assessee. Shri Roopchand, the learned Departmental Representative who was present on behalf of the Revenue when asked about the service on the respondent -assessee, was unable to say whether service had been effected or not. Department has shown total apathy in the matter of service of notices of hearing. Accordingly the appeal of the Revenue could not be heard on merit in absence of proper service of notice upon assessee. It shows that revenue has not provided proper address of the assessee. Opportunity of hearing is essential before adjudicating appeal for which service of notice is a condition precedent. Under section 254(1) the Tribunal is required to give both the parties to the appeal an opportunity of being heard. What is engrained in section 254(1) is not an empty formality but a valuable right available to the parties in appeal before the Tribunal. Since in the instant case notice of hearing could not be effected on the respondent -assessee at the address given by the Revenue in the Memorandum of Appeal, and the Departmental Representative has not got the notice served in spite of sufficient opportunity, it has not been possible to conduct the adjudication proceedings as per the requirements of section 254(1). When the Bench confronted the learned Departmental Representative as to why the Revenue's appeal may not be dismissed for apathy in service of notice on the respondent -assessee, the learned Departmental Representative had no answer.

(3.) APART from the above, we feel that it has been the established practice and accepted procedure that in case notices of hearing cannot be served on the respondent assessee in revenue's appeal, such notice has got served through Income -tax authorities. Such practice and procedure has been long established and followed in the interest of expeditious adjudication of tax disputes.