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Income Tax Appellate Tribunal, “C’’ BENCH: BANGALORE
Before: SHRI B. R. BASKARAN & SMT. BEENA PILLAI
PER B.R. BASKARAN, ACCOUNTANT MEMBER:
Both the appeals filed by the assessee are directed against the common order dated 31.1.2017 passed by Ld. CIT(A)-11, Bengaluru and they relate to the assessment years 2010-11 & 2011-12. The assessee is aggrieved by the decision of Ld. CIT(A) in dismissing the appeals of the assessee in limini, without condoning the delay in filing the appeals before him. Both the appeals relate to the penalty levied u/s 271(1)(c) of the Act.
&966 /Bang/2017 M/s. Devi Enterprise, Partner – Shri K. Mehfuz Ali Khan, A.P.
Page 2 of 4 2. We heard the parties and perused the record. We notice that both the appeals came to be filed before Ld. CIT(A) after a delay of more than 17 months. Though the assessee has furnished a petition praying for condoning the delay, the reasons given by the assessee were not accepted by Ld. CIT(A) to be reasonable and accordingly dismissed the appeals of the assessee for both years in limini without admitting them. Further, on a perusal of order passed by Ld. CIT(A), we notice that the assessee was not represented before Ld. CIT(A), even though the first appellate authority has posted the cases for hearing on three occasions.
The Ld. A.R. submitted that the partners of the assessee firm were facing several legal issues and hence they could not appear before Ld. CIT(A). He submitted that the Ld CIT(A) has passed the impugned orders ex-parte, without hearing the assessee.
We notice that the Ld CIT(A) has passed the order without hearing the assessee, since the assessee did not appear before him, even though three opportunities were given. However, the Principles of natural justice warrant that no one should be condemned unheard. In the instant cases, we notice that the Ld. CIT(A) has dismissed the appeals of the assessee in limini without condoning the delay in filing appeals and also without hearing the assessee. Hence there was no occasion for the Ld. CIT(A) to pass the orders on merits. Under these set of facts, we are of the view that, in the interest of natural justice, the assessee should be provided with one more opportunity to present its case before Ld. CIT(A). In our view, affording one more opportunity to the assessee, in the facts and circumstances of the case, would promote cause of justice. &966 /Bang/2017 M/s. Devi Enterprise, Partner – Shri K. Mehfuz Ali Khan, A.P.
Page 3 of 4 5. Since the assessee has not appeared before Ld. CIT(A) despite giving 3 opportunities, we are of the view that the assessee should be imposed a cost for its delinquency. Accordingly, we impose a cost of Rs.5,000/- (Rs. Five thousand only) upon the assessee, which shall be paid by the assessee to the credit of the Income Tax Department as “other fees” within two months from the date of receipt of this order.
Subject to the payment of above said cost of Rs.5,000/- as stated above, we set aside the orders passed by Ld. CIT(A) in both the years under consideration and restore all the issues including the issue of delay in filing appeals before him, to his file for adjudicating them afresh, after affording adequate opportunity of being heard to the assessee. We also direct the assessee to extend full cooperation to Ld. CIT(A) for expeditious disposal of the appeals.