GURDEV CHAND,AMBALA CANTT. vs. ITO, W-1, AMBALA

Following grounds have been raised in this appeal:

That the Notices issued by the CIT(Appeals), Ludhiana, were never served upon the Appellant, as enumerated in the impugned order, also no intimation of the transfer of the case from CIT(Appeals) Panchkula to CIT(Appeals) Ludhiana, has been given to the Appellant.

2. That if a notice for 26.02.2018 was served, against which written reply was filled on 19/03/2018, then how the remaining notices could not be served, creates doubt on the spirit behind serving the valid notices. 3. That the Appellant has already preferred an appeal against the original order passed by the ITO Ward No. 3, Ambala, Before CIT(Appeals), Panchkula, vide Appeal No. 49/AMB/15-16, which is still pending with him. 4. That the original Appeal is still pending with CIT (Appeals) Panchkula, as application from additional evidences u/s 295(2)(mm), is remanded to the ITO Ward No. 2, Ambala, who yet to have submit the remand report, where as the appellant has complied all the notices served by the then ITO for additional evidences.

The main grievance of the assessee in this appeal relates to the ex- parte order passed by the Ld. CIT(A) without service of the notice on the assessee. It has also been claimed vide ground no.4 that the original appeal was still pending with the Ld. CIT(A), Panchkula.

Facts of the case in brief are that the case of the assessee was reopened by initiating the proceedings under section 147 r.w.s 148 of the Income Tax Act, 1961 (hereinafter referred to as ‘Act’) on the basis of AIR information of cash deposit in the saving bank account of the assessee amounting to Rs. 10,04,000/- in Punjab National Bank, Ambala. The A.O. framed the ex-parte assessment at an income of Rs. 10,04,000/- and also initiated the penalty proceedings under section 271(1)(c) of the Act. Since there was no compliance to the notice issued by the A.O. the penalty order was also passed ex-parte and the penalty under section 271(1)(c) of the Act amounting to Rs. 2,81,846/- was levied.

Being aggrieved the assessee carried the matter to the Ld. CIT(A) who passed the impugned order ex-parte by observing that the notices were sent through speed post but nobody appeared in response to those notices. Ld. CIT(A) sustained the penalty levied by the A.O.

Now the assessee is in appeal.

Ld. Counsel for the assessee submitted that no notice for hearing was served upon the assessee therefore the Ld. CIT(A) was not justified in sustaining the penalty levied by the A.O. by passing the ex-parte order.

In his rival submissions the Ld. DR supported the impugned order passed by the Ld. CIT(A).

I have considered the submissions of both the parties and perused the material available on the record. In the present case nothing is brought on record to substantiate that the notice for hearing although claimed to be sent by speed post was served upon the assessee. It is well settled that nobody should be condemned, unheard as per the maxim, “audi alteram pertam”.

I therefore keeping in view the principle of natural justice deem it appropriate to set aside this case back to the file of Ld. CIT(A) to be adjudicated afresh in accordance with law after providing due and reasonable opportunity of being heard to the assessee.

In the result, appeal of the assessee is allowed for statistical purposes.