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Income Tax Appellate Tribunal, ALLAHABAD BENCH ‘SMC’ ALLAHABAD
Before: SHRI.VIJAY PAL RAO
O R D E R PER SHRI VIJAY PAL RAO, JUDICIAL MEMBER:
These five appeals by the assessee are directed against five separate orders of ld. CIT(A) all dated 15.03.2018 for the AYs. 2006-07 to 2007-08 & 2010-11 to 2012- 13 respectively. The assessee has raised identical grounds in these appeals expect the quantum of addition. The grounds raised for the AY 2006-07 are reproduced as under:
1. That in any view of the matter order passed u/s 153A/143(3) of the income tax Act is bad both on the facts and in law and by such order income as determined is highly unjustified and incorrect therefore the declared income should have been accepted in the facts and circumstances of the case.
That in any view of the matter the ld. CIT(A) was wrong in deciding the appeal ex-parte without providing reasonable opportunity to the assessee and therefore the order is not speaking order in the eyes of law.
3. That in any view of the matter proceeding was initiated by issue of notice u/s 142(1) of the Income Tax Act as initiated as per notice dated 16.01.2014 and 14.02.2014 is illegal in so far as by such action sanctity of original return is disturbed moreover in the course of 132A of the income tax Act no material found for start of proceeding. In these backgrounds the assessment is liable to be cancelled in the facts and circumstances of the case. 4. That in any view of the matter the entire assessment proceeding no opportunity was allowed to the assessee nor the issue/objection of the assessee were taken into account hence the assessment is illegal and therefore the addition are unwarranted. 5. That in any view of the matter addition of Rs.30,693/- as per para 6 of the assessment order as made by the Assessing Officer and confirmed by CIT(A) is highly unjustified and incorrect in the facts and circumstances of the case. 6. That in any view of the matter addition of Rs.25,000/- as per Para 7 of the assessment order as made by the Assessing Officer and confirmed by CIT(A) is highly unjustified and incorrect in the facts and circumstances of the case. 7. That in any view of the matter the interest charged under different sections of the income tax act by the Assessing Officer and confirmed by CIT(A) is highly unjustified and illegal in the facts and circumstances of the case. 8. That in any view of the matter the appellant reserves his right to take any fresh ground of appeal before hearing of the appeal.”
2. At the time of hearing, the ld. AR of the assessee has submitted that in Ground No.2 of the grounds of appeal, the assessee has challenged the ex-parte order passed by the ld. CIT(A) without providing reasonable opportunity of hearing. He has referred to the finding of the ld. CIT(A) and submitted that the ld. CIT(A) has dismissed the appeal of the assessee in limine without deciding the same on merits.
Thus ld. AR has submitted that the impugned order may be set aside and the matter may be remanded to the record of the CIT(A) for deciding the same afresh after giving one more opportunity of hearing to the assessee.
On the other hand, ld. DR has vehemently oppose to grant of one more opportunity to the assessee and submitted that the ld. CIT(A) granted as many as nine opportunities to the assessee, but, when the assessee has not attended any of date of hearing, the ld. CIT(A) was left with no option but to pass the impugned ex-parte order.
Having considered the rival submissions as well as relevant material available on record it is noted that the ld. CIT(A) mentioned several dates of hearing and none attendance of the proceedings on behalf of the assessee. However, in Para 5 of the impugned order the ld. CIT(A) has dismissed the appeal of the assessee in limine for want of representation as under: “5. The aforesaid non compliances reveals beyond doubt that the appellant has nothing to say in the matter of his appeal. Thus, it appears that the assessee in not interested in prosecution of the present appeal and the same is liable to be dismissed on this ground itself. The law assists those who are vigilant and not those who sleep over their rights. This principle is embodied in the well known dictum ‘VIGILATIBUS, NON DORMENTIBUS, JURA SUBVENIUNT”. Considering the facts and relying on the decision of the Act, ITAT, Delhi bench, in the case of CIT vs. Multiplan India Ltd., 38- ITD-320 and the judgment of the Hon'ble Madhya Pradesh High Court in the case of Estate of Late Tukoji Rao Holker vs. CWT (1997) 223-ITR- 480 the present appeal is hereby dismissed.”
All the orders of the ld. CIT(A) are identical. Thus, it is clear that though the opportunities of hearing were granted to the assessee by the ld. CIT(A) however, the ld. CIT(A) has not passed speaking order and dismissed the appeals of the assessee in limine. Accordingly, in the facts and circumstances of the case and in the interest of justice, the impugned orders of the ld. CIT(A) are set aside and the matters are 3 remanded to the record of the ld. CIT(A) for deciding the same afresh by speaking order after grating one more opportunity of hearing to the assessee.