SHREE TRIPAL SINGH Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THESE two petitions were taken up together and are being disposed of by a common judgment as suggested by the learned counsel for the parties. The learned counsel for the parties submitted that common questions of law and fact are involved in these petitions. The arguments were advanced with reference to the writ petition No.150 of 2010, therefore, the facts are taken from the said file.

(2.) THE dispute relates to the Assessment Year 1998 -1999. The petitioner/assessee failed to appear before the Assessing Authority which compelled the Assessing Authority to complete the assessment under section 144 of the Income Tax Act. The said order is dated 29th of December, 2005. The petitioner did not file any appeal, instead challenged the Assessment Order by filing a revision as provided for under section 264 of the Act before the Commissioner of Income Tax (Admn.), Muzaffarnagar. The memo of revision is dated 23rd of May, 2006. The said revision has been dismissed by the Commissioner of Income Tax on 25th of March, 2008 as no one attended the office on the fixed date. Thereafter, an application to recall the said order was filed which is dated 9th of June, 2008. The said application has been dismissed by the order dated 26th of October, 2010 on the short ground that there is no provision under the Income Tax Act for recalling the order passed under section 264 thereof. Feeling aggrieved, the present writ petition has been filed.

(3.) LEARNED counsel for the petitioner submitted that power to pass exparte order includes the power to recall the same notwithstanding absence of any express provision in respect thereof. Reliance has been placed on M/s. M.P. Poddar & Co. Vs. Addl. Judge (Revision) Sales Tax, Gorakhpur, Varanasi Camp, 1982 UPTC 117; Shyam Behari Tewari Vs. Goods Tax Officer, Allahabad; 1985 UPTC 638 and M/s. Ram Sewak Cold Depot Vs. Commissioner of Trade Tax, 2003 UPTC 608. He further submitted that the Commissioner of Income Tax should have decided the revision on merits even if the petitioner could not appear on fixed date. In support of the above, reliance has been placed on Chandra Kant J. Patel Vs. V.N. Srivastava (2011) 339 ITR 10 (Gujrat). In reply, the learned counsel for the respondents submitted that it is a case where the petitioner does not deserve any sympathy or leniency. The petitioner has been negligent throughout in prosecuting his case. The said fact, according to the learned counsel for the petitioner, is born out from the assessment order itself. Twice, the dates were fixed for hearing of the revision by the Commissioner but the petitioner failed to appear. The petitioner has not been able to show the sufficient cause, if any, for his non appearance on the fixed date. Further, in absence of the petitioner, the Commissioner of Income Tax has rightly dismissed the revision exparte without deciding it on merits.