CIT Vs. ALANKAR TILES

JUDGEMENT

(1.) This is an appeal filed under section 260A of the Income Tax Act, 1961, by the revenue against M. A. Nos. 46, 47 and 48/Ind of 2003, which arises out of I.T.A. Nos. 164, 626 and 627/Ind of 1997.

(2.) By the impugned order, the Tribunal has allowed the application of the assessee seeking rectification of the main order passed by the Tribunal in appeal and has accordingly recalled the main order on the ground that the assessee was not found to be served the notice of the appeal before the appeal was finally heard and decided against them. The Tribunal went into this question and confirmed that the notice of the appeal was not properly served on the assessee and, therefore, by the impugned order, the main order passed in appeal was recalled on payment of Rs. 1,000 by way of costs to be paid by an assessee and the appeals were accordingly set down for final hearing after affording an opportunity to the assessee. 3. It is against this order that the revenue has felt aggrieved and filed this appeal contending inter alia that it involves substantial question of law as is required to be made out under section 260A of the Act. 4. In our opinion, the appeal does not involve any question of law much less any substantial question of law as is required to be made out under section 260A of the Act. There is a categorical finding recorded by the Tribunal holding that the assessee was not served the memo of appeal before it was heard finally. Under these circumstances, it was held that the appeal which was heard ex parte and without notice to an assessee deserves to be set aside. In our opinion, the Tribunal was perfectly justified in recalling the order, which in our opinion, was passed behind the back of the assessee. If the assessee is granted an opportunity of hearing, in appeal, then there is no prejudice caused to the revenue. It is for the reason that as and when the appeal is heard by the Tribunal, the revenue will also be heard by the Tribunal before any order is passed on the merits. In such matters, the revenue should not have even filed the appeal which does not really involve any substantial question of law. 5. The appeal thus fails and is hereby dismissed in limine.