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Income Tax Appellate Tribunal, DELHI BENCHES “SMC”: DELHI
Before: SHRI BHAVNESH SAINI
This appeal by assessee has been directed against the order of Ld. CIT(Appeals)-Ghaziabad dated 30.11.2018 for AY 2009-10, challenging the levy of penalty u/s 271(1)(c) of the I.T. Act.
The Ld. CIT(A) noted in the appellate order that the order uploaded with Form No. 35 was not pertaining to the assessee
2 ITA.No.1161/Del./2019 as it contained different names of assessee and different addresses. Therefore, appeal was found to be not maintainable. Show-cause notice was issued on 19.11.2018 pointing out the above defect which was not responded by the assessee. The appeal was, therefore, dismissed being defective. Ld. Counsel for assessee submitted that no notice has been served upon the assessee and it was only a first notice sent to the assessee. He has, therefore, prayed that matter may be remanded back to the CIT(A) for fresh hearing.
Ld. DR also suggested that matter should be remanded back to the CIT(A) for deciding the appeal afresh.
I have considered the rival submissions. The ld. CIT(A) issued only one notice dated 19.11.2018 pointing out some defects in appeal to the assessee. However, it is not mentioned in the appellate order whether the said notice has been served upon the assessee. The Ld. CIT(A) is having co- terminus power to that of the AO, therefore, the impugned order could also be summoned from the AO. Therefore,
3 ITA.No.1161/Del./2019 dismissing the appeal on technical ground would not be permissible in law. Since, the assessee denied service of notice, therefore, it appears the impugned order is volatile of principle of natural justice. I, accordingly, set aside the impugned order and restore the appeal of assessee to the file of CIT(Appeals), Ghaziabad with direction to re-decide the appeal of the assessee as per law by giving reasonable, sufficient opportunity of being heard to the assessee.
In the result, the appeal of assessee is allowed for statistical purposes.
Order pronounced in the open Court.