PER H.L.KARWA, VICE PRESIDENT This Miscellaneous Application by the assessee arises out of the order of the Tribunal dated 28.5.2010 passed in I.T.A.No.308(Luc.)/2010 relating to the assessment year 2004-05.
2. The assessee vide its application dated 3.8.2010, has stated as under: The appellant humbly submits as under:
1. That the appellant has filed an appeal before the Hon'ble Tribunal against the orders of the ld.Commissioner of income (Appeals) for the assessment year 2004-05.
2. That the hearing of the appeal was fixed by the Tribunal on 28th May, 2010 and a notice through RPAD was issued to the appellant to appear on that date.
3. That the notice of hearing could not be received by the appellant before the date stipulated in the notice but it was received on 14th day of June, 2010. In support of this fact, the appellant is filing a sworn affidavit. It is, therefore, humbly prayed that the ex parte order dated 28.5.2010 may kindly be recalled and the appeal re-heard. Yours faithfully, Dated: 3.8.2010 Sd. Appellant
3. We have heard the ld. D,.R. and have also carefully gone through the contents of the above application. It is noticed that the appeal filed by the assessee i.e. I.T.A.No.308(Luc.)/2010 was fixed for hearing on 28.5.2010. However, on the said date nobody appeared on behalf of the assessee and the appeal was treated unadmitted as per the provisions of Rule 19(2) of the Income-tax (Appellate Tribunal) Rules, 1963. In the instant application, the assessee has contended that the notice of hearing could not be received by him before the date stipulated in the notice but it was received on 14th day of June, 2010. In support of this fact, the assessee has also filed a sworn affidavit.
4. From the above facts, it is clear that the assessee has received the notice of hearing on 14th day of June, 2010 i.e. after the date of hearing fixed for 28th May, 2010. At the time of hearing of the application, Shri Alok Mitra, ld.D.R. could not controvert the above contention of the assessee. Considering the entire facts and circumstances of the case, we are of the view that the assessee was prevented by sufficient cause from attending the hearing on 28.5.2010. In our view, a reasonable opportunity of being heard to the assessee in the matter has not been given by the Tribunal. It is true that the natural justice demands not only that a person be heard but that he be given a fair hearing in the matter. In other words, no one should be condemned unheard. Thus, we are of the view that the order of the Tribunal dated 28.5.2010 deserves to be set aside. We order accordingly and restore the appeal for hearing. The Registry is directed to fix the appeal i.e.
I.T.A.No.308(Luc.)/2010 relating to assessment year 2004-05 for hearing in due course.
3. In the above terms, the Miscellaneous Application is allowed. The order pronounced in the open Court on 1.10.2010. Sd. Sd. (N.K.Saini) (H.L.Karwa) ACCOUNTANT MEMBER VICE PRESIDENT October , 2010. Copy to the :
1. Applicant 2. Respondent 3. CIT(A) (4) CIT 5.DR. A.R.,ITAT, Lucknow. Srivastava.