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Income Tax Appellate Tribunal, LUCKNOW BENCH “SMC”, LUCKNOW
Before: SHRI A.D JAIN
This is assessee’s appeal for the Assessment Year 2009-10, taking the following grounds:-
“1. Because the learned first appellate authority ought not to have dismissed the appeal of the assessee by inferring that the appellant has nothing to say in the matter of the appeal and the assessee is not interested in prosecution of the appeal. 2. Because the learned first appellate authority ought to have adjudicated the appeal on merits instead of dismissing the same without considering the issues in appeal on merits. 3. Because the learned first appellate authority ought to have considered that sufficient opportunity was not given to the assessee by the Id. Assessing Officer to
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present the case of the assessee and to produce the documents relied upon by the appellant. 4. Because the learned assessing officer erred on facts and in law in imposing penalty of Rs.1,10,000/- u/s 271(1)(c) of the Income Tax Act, 1961. 5. Because the learned assessing officer erred in inferring that the assessee has concealed his particulars of income and hence liable for imposition of penalty u/s 271(l)(c) of the Income Tax Act, 1961. 6. Because the learned assessing officer and the first appellate authority did not allow sufficient opportunity to the appellant for presenting its case.”
By virtue of the impugned order, the ld. CIT(A) has dismissed the assessee’s appeal for non prosecution, observing that several opportunities have been allowed to the assessee, but no compliance has been made by the assessee. 3. I have heard the rival parties and have gone through the material placed on record. I noted that the ld. CIT(A) has passed the ex-parte order as according to him, nobody has appeared on the date when the appeal was fixed for hearing before him. The order of the CIT(A) mentions dates of issuance of notices, but nothing with regard to service thereof on the assessee. I 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, I feel that one more opportunity should be given to the
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assessee as ld. CIT(A) has not decided the appeal on merits. The
provision of section 250 which deals with the procedure in appeal before
the ld. 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. I, 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 ld. CIT(A) and not to seek undue adjournment and co-operate with ld.
CIT(A) in disposing of the appeal.
In the result, the appeal of the assessee stands allowed for
statistical purposes.
Order pronounced in the open court on 03/05/2019. Sd/- (A.D. Jain) Vice President Aks – Dtd. 03/05/2019
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Copy of order forwarded to: (1) The appellant (2) The respondent (3) Commissioner (4) CIT(A) (5) Departmental Representative (6) Guard File
By order
Assistant Registrar