THE DISTRICT MAGISTRATE/DISTRICT MINING OFFICER,PILIBHIT vs. INCOME TAX OFFICER (TDS), BAREILY

BECAUSE, on the facts and in the circumstances of the case, the impugned order passed by the Ld. CIT(A), sustaining the order of ITO (TDS) u/s 206C (6A) of die Income Tax Act is unsustainable and bad in law since the authorities have not considered the proviso contained under sub section (6A) of Section 206C of the income Tax Act and have misapplied the provisions of the Act. 4. BECAUSE, on the facts and in the circumstances of the case, the Ld CIT(A) has further erred in holding the TCS is applicable on 'sand excavation" and brick kilns" since the same are outside of the preview of Mines and Minerals act and otherwise also TCS is not applicable on the same. 5. BECAUSE, on the facts and in the circumstances of the case, the Ld. CIT(A in refusing to condone the delay since the same got occasioned on account of bonafide reasons beyond the control of the assessee and that there is no malafide in not preferring the appeal within rime. 6. BECAUSE, on the fads and in the circumstances of the case, the impugned order passed by the Ld. CIT (A), sustaining the order of ITO (TDS) u/s 206C (6A) of the Income Tax Act is unsustainable and bad in law since it is voilative of the principles of natural justice as no Notice have been served by the Assessing Officer before passing the impugned order. 7. BECAUSE, on the facts and in the circumstances of the case, the impugned order passed by the Ld CIT (A), sustaining the order of ITO (TDS) u/s 206C (6A) of the Income Tax Act is unsustainable and bad in law since the demand raised upon the assessee is based on wrong calculation made by the Assessing Authority and the same is unsustainable in law. 8. BECAUSE, on the facts and in the circumstances of the case, the Ld. CIT(A) Is not justified in refusing to adjudicate upon the grounds of appeal raised by the assessee concerning the instant controversy citing the reason that provisions of Rule 46A were attracted and the same were not satisfied The provisions of Rule 46A are extraneous to the instant controversy and the Ld CIT(A) has grossly erred in invoking the said provision. 9. BECAUSE, on the facts and the circumstances of the case,' the impugned order passed by Ld. CIT (A) is unsustainable being non speaking and highly cryptic.

BECAUSE, on the facts and the circumstances of the case, the CIT(A) has passed the order without providing the assessee with a due and proper opportunity of hearing and- therefore the impugned order deserves to be set-aside being bad in law."

The assessee's appeals are delayed by fifty one days. An application for condonation of delay has been filed, accompanied by an affidavit of the Director of the assessee company. The contents of the affidavit read as under: “I Anurag Kumar Srivastav S/o Late Mr. S.C Srivastav R/o T-1604 Arihant ambience crossing repubiik, Ghaziabad in the capacity of Mining Officer of the above named appellant, do hereby solemnly declare and state on oath the following facts: 1. That I am an Indian citizen, aged about 58 years and competent and duly authorized to sewer the present affidavit and confirmed the averments made herein. 2. That I am currently posted as Mining Officer at Pilibhit. 3. That, instant income tax appeal. the annexed application for condonation of delay Dt. 05.102020 has been prepared on my instructions or my predecessors and I have read-over the contents of the same and approve/re-approve the averments made. 4. There is a short delay of approximately 51 days in preferring the instant appeal This delay, got occasioned due to peculiar circumstances, beyond the control of the assessee and are prayed to be condoned in the interest of justice in view of the facts and circumstances mentioned in the application seeking condonation of delay in filing appeal The appeal is prayed to be heard on merits."

In view of the above contents of the application for condonation of delay, duly supported by the affidavit of the Mining Officer, Pilibhit of the assessee company, it is seen that the assessee was prevented by sufficient cause from filing the appeal in time. The delay is inadvertent. Accordingly, the delay of fifty one days in filing the appeal is condoned. 4. By virtue of the impugned order, the Id. CIT(A) has dismissed the assessee's appeal for non prosecution, observing that notices dated 05.06.2017, 03.07.2017, 28.07.2017 and 05.09.2017 none had attended on behalf of the assessee.

We have heard the rival parties and have gone through the material placed on record. We noted that the Id. CIT(A) has passed the ex-parte order as according to him, nobody has appeared on the dates when the appeal was fixed for hearing before him. We also noticed from the order of the CIT(A) that he has summarily decided the appeal of the assessee without giving any cogent reason and his order is non speaking order. Under these circumstances, we feel that one more opportunity should be given to the assessee as Id. CIT(A) has not decided the appeal on merits. The provision of section 250 which deals with the procedure in appeal before the Id. CIT(A), allows a right to an assessee to be heard at the time of hearing of appeal. Even the natural justice demands that no appeal should be disposed of without being heard the party or without giving him the proper and sufficient opportunity. We, therefore, in the interest of justice and fair play to both the parties, set aside the order of CIT(A) and restore the appeal to the file of the CIT(A) with the direction that the CIT(A) shall refix the said appeal and decide the appeal afresh after giving proper and sufficient opportunity of being heard to the assessee. The assessee is also directed to be present on the date of hearing fixed by Id. CIT(A) and not to seek undue adjournment and co-operate with Id. CIT(A) in disposing of the appeal. 6. Facts being similar in the other appeals, i.e., ITA Nos. 363 to 368/Lkw/2019, these appeals are also restored to the file of the Id. CIT(A), with the same observations as given in ITA No.362/Lkw/2019. 7. In the result, the appeals of the assessee stand allowed for statistical purposes.