Smt. Santosh Singla vs Income Tax Officer

Rule DB. Learned Counsel for the respondent waives service of notice. Since there is no dispute about the facts and the short question of law

which is raised in this petition, Learned Counsel for the parties arc ready to argue the matter.

Arguments heard.

The petitioner had filed a return of income tax for the assessment Year 1997-98 declaring the income of Rs. 1,01,610 and the said return was

processed u/s 143(1) of the income tax Act, 1961 (hereinafter referred to as ""the Act""). However, an ex parte assessment u/s 143/ 144(3) of the

Act was passed raising the income at Rs. 23,76,291. In the process, the Assessing Officer made certain additions u/s 68 of the Act treating the

same to be undisclosed income of the assessee.

The petitioner has challenged the order of the Assessing Officer by filing appeal before the Commissioner of income tax (Appeals) (for short

the CIT(A)""). This appeal was partly allowed, vide order dated November 9, 2000. In so far as the addition u/s 68 is concerned the same was

deleted by the Commissioner of income tax (Appeals). The Revenue preferred an appeal against the aforesaid order of the Commissioner of

income tax (Appeals). This appeal was allowed by the income tax Appellate Tribunal for statistical purpose and the matter was remitted back to

the Assessing Officer directing him to inquire into the issue afresh by making certain further probe into the matter. The orders passed by the income

tax Appellate Tribunal were ex parte. According to the petitioner, the petitioner was not served with the summons in the said appeal and,

therefore, she had no knowledge of the pendency of the appeal filed by the Revenue. On coming to know of the said orders, the petitioner filed

miscellaneous application u/s 254(2) of the Act for recall of the order. This application was filed on June 4, 2010, that is after the lapse of more

than four years from the date of passing the order of the Tribunal in the appeal of the Revenue. Vide order dated February 25, 2011, the Tribunal

has dismissed the application of the assessee as time barred on the ground that the application was filed four years after the orders passed by the

Tribunal and, therefore, such an application cannot be entertained.

We are of the view that the approach of the Tribunal is not in consonance with law. The application first filed by the applicant for recall of order

dated April 24, 2005, on the premises that the petitioner was never served with the summons in appeal. If it is factually correct then it would be

tantamount to passing the order in the absence of the petitioner without affording adequate opportunity to the petitioner to represent her case. Such

an order would be nullity in the eyes of law. When the petitioner had no knowledge about the order and was never served with the summons, the

petitioner could file an application for setting aside the order. On the other hand if the petitioner was served with the summons then the order of the

Tribunal dismissing the application as time barred would be correct. Therefore, the Tribunal should have first examined, with reference to record as

to whether the petitioner was served with the summons or not and on ascertainment of this fact further course of action, as indicated above, should

have been adopted. Since this contention of the petitioner as to whether the petitioner was served with the summons or not can be ascertained only

from the records of the Tribunal, we cannot go into the issue in this writ petition.

In these circumstances, we set aside the impugned order with direction to the Tribunal to decide the application filed by the petitioner afresh in

the manner indicated by us. We may make it clear that if as per the records of the Tribunal the notice was served upon the petitioner, then the

application can be treated as time barred. The writ petition stands disposed of in the aforesaid terms.