M/S GURFATEH FILMS,MOHALI vs. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-II, JALANDHAR

The main grievance of the assessee vide ground no. 1 relates to the ex parte order passed by the learned CIT(A) without considering the material on record. The said ground read as under:-

Facts of the case in brief are that a search and seizure operation under section 132 of the Income Tax Act, 1961 (hereinafter referred to as the Act) was carried out on 5.12.2012 and certain incriminating material was found and seized. The assessee filed the return of income on 9.3.2015 declaring an income of Rs. 46,25,000/-. However the assessment was framed by the AO at an income of Rs. 2,29,84,698/- by making the various additions.

Being aggrieved the assessee carried the matter to the learned CIT(A) who dismissed the appeal in lemine by observing that the final opportunity vide notice dated 9.10.2017 for hearing on 23.10.2017 was given to the assessee thereafter the notice was sent for hearing on 8.11.2017 by registered post but none appeared on behalf of the assessee.

Now the assessee is in appeal.

The learned counsel for the assessee submitted that the learned CIT(A) had not considered the relevant material which was already available on the record. It was also submitted that proper opportunity of being heard was not provided by the learned CIT(A).

In his rival submissions, the learned DR submitted that the assessee was not cooperative and did not appear whenever the case was listed for hearing. So there was no alternative except to dismiss the appeal of the assessee for non prosecution.

We have considered the submissions of both the parties and perused the material available on the record. In the present case, it is an admitted fact that the learned CIT(A) dismissed the appeal of the assessee ex parte in lemine and had not discussed the issues on merit. It is well setteled that nobody should be condemned unheard as per the maxim “Audi Alteram Partem”. We, therefore, deem it appropriate to set aside this case back to the file of the learned CIT(A) to be decided afresh on merit in accordance with law after providing due and reasonable opportunity of being heard to the assessee. The facts involved in ITA No. 51/Asr/2018 are similar to the facts in ITA No. 50/Asr/2018 (supra) therefore, our findings given in the former part of this order shall apply mutatis mutandis for this assesse also.

In the result, the appeals of the assessees are allowed for statistical purposes. (Order Pronounced in the Court on 17/01/2019).