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Income Tax Appellate Tribunal, LUCKNOW BENCH “B”, LUCKNOW
Before: SHRI A.D JAIN & SHRI T.S. KAPOOR
PER: T.S. KAPOOR, A.M.:
These appeals are filed by the assessee for Assessment Years 2008-09 to 2011-12, involving common issues. As such, they are being disposed of by this composite order. Details, for convenience, are being taken from ITA No.39/Lkw/2018 in the case of Aditya Raj Maheshwari. The following grounds have been raised in ITA No.39/Lkw/2018 “1. That the Id. Commissioner of Income Tax {Appeals)-ll, Kanpur has erred in law and on facts in dismissing the appeal by an Ex-parte Order without considering and appreciating the facts and explanation on record. 2. That the Ld. Commissioner of Income Tax (Appeals)-II, Kanpur has erred in [aw and on facts in sustaining the addition of Rs.4,05,00,000/- allegedly unexplained cash credit
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under section 68 of the Income Tax Act, 1961 made merely on the basis of conjectures and surmises. 3. That the Ld. Commissioner of Income Tax (Appeals)-ll, Kanpur has also failed to consider and appreciate that no notice of hearing was served on the appellant, therefore, the appellant was prevented by reasonable and sufficient cause in not attending any of the hearing mentioned in the Appellate Order. 4. That without Prejudice to the above Grounds of Appeal, the addition sustained by the Ld. Commissioner of Income Tax (Appeals)-ll, Kanpur is insupportable in law and on facts and is also contrary to the principles of natural justice and equity. 5- That the addition sustained by the Ld. Commissioner of Income Tax (Appeals)-II, Kanpur is wholly unjustified, unwarranted and in any case much too high and excessive. 6. That any other relief or reliefs as your honour may deem fit in the facts and circumstances of the case, be granted.”
By virtue of the impugned order, the ld. CIT(A) has dismissed the assessee’s appeal for non prosecution, observing that notices dated 16.05.2017, 03.11.2017 and 21.11.2017 for compliance on 31.05.2017, 20.11.20178 and 06.12.2017 were issued to assessee at the address submitted by the assessee in its memo of appeal; that however, no written submission or paper book had been filed in support of any of the grounds of appeal taken.
We have heard the rival parties and have gone through the material placed on record. We 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) talks of the notice/s having been ‘issued’ or ‘sent’ to the assessee and mentions nothing with regard to service thereof on the assessee. We also noticed from the order of the CIT(A) that he has summarily decided the appeal of
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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 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. 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 ld. CIT(A) and not to seek undue adjournment and co- operate with ld. CIT(A) in disposing of the appeal. 4. Facts being similar in the other appeals, i.e., ITA Nos. 40 &
626/Lkw/2018, these appeals are also restored to the file of the ld. CIT(A),
with the same observations as given in ITA No.39/Lkw/2018.
In the result, the appeals of the assessee stand allowed for statistical purposes.
Order pronounced in the open court on 03/05/2019. Sd/- Sd/- (A.D. Jain) (T.S. Kapoor) Vice President Accountant Member 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