P.N. Parashar, J.M. - (1.) THROUGH this miscellaneous application, purporting to be under Section 254(2) of the IT Act, 1961, the Revenue seeks to recall the Tribunal's order dt. 29th Nov., 2002 passed in the above captioned appeal.
(2.) The facts concerning this matter are that the hearing of the appeal (ITA No. 7501/Del/1995) was listed on 15th May, 2001. The notice of hearing was sent at the address given in column No. 11 of form No. 36. However, none appeared on behalf of the assessee and the notice was returned back from postal authorities with the remark "left". Thereafter, notice for subsequent dates of hearing was sent but nobody appeared on behalf of the assessee. On 14th Aug., 2001, it was directed that the notice be served upon the respondent through the Departmental Representative. This direction was also repeated on several dates and ultimately the appeal was fixed for hearing on 21st May, 2002, on which date also none appeared on behalf of the respondent. The Bench proceeded to hear the appeal, ex parte, qua the assessee, on merits. In para 5 of its order the Bench observed as under: "We have heard Shri Suresh Kumar, learned Departmental Representative for the Revenue. None appeared on behalf of the assessee despite notice sent through Departmental Representative on several occasions (served by affixture on 20th May). Hence we are disposing of the appeal ex parte qua assessee but on merits after hearing the learned Departmental Representative and perusing the material on record." In the miscellaneous application it is stated that photo copy of the Bench order was provided to the Authorised Representative of the assessee on 3rd March, 2004 during the course of proceedings under Section 131 of the Act initiated by the Asstt. CIT, Cir. 46(1), New Delhi, against M/s Hewlett Packard Co., USA, being the employer of the applicant. In para 4 of the miscellaneous application, following submission has been made regarding notice of hearing : "4. That neither the memorandum of appeal nor the notice for hearing of the appeal was ever received by the appellant. Further, the India Liaison Office of M/s Hewlett Packard Co., USA, was virtually inoperational since 1999 and was eventually closed w.e.f. 1st March, 2002. The requisite approval from Reserve Bank of India (RBI) and the No Objection Certificate (NOC) from concerned IT authorities were duly obtained for closure of the India Liaison Office."
(3.) ANOTHER ground has been taken in para 5 of the petition which is as under: "5. Further, the Hon'ble Tribunal has, vide the above mentioned order, concluded that the taxes paid by the India Liaison Office of M/s Hewlett Packard Co., USA, on behalf of the employee are to be grossed up for the purpose of determining the amount of tax payable whereas the issue of grossing up was never raised by the Department in the grounds of appeal filed before the Hon'ble Tribunal. The grounds of appeal raised in the memorandum of appeal are reproduced hereunder for ready reference.";