ZED LABORATORIES LTD,PATNA vs. DCIT, C.CIRCLE-2, PATNA

Following grounds have been raised in this appeal: “1. For that the Grounds of Appeal hereto are without prejudice to one another. 2. For that in the facts and circumstances of the case the ld. CIT(A) is not justified in holding that the appellant is not interested to prosecute the appeal. The appellant always appeared and comply the statutory notices. 3. For that moreover, the learned CIT has also committed gross errors of law in not giving proper time which is violation of principle of natural justice. 4. For that in the facts and circumstances of the case ld. CIT(A) has also committed gross error in not adjudicate grounds of appeal on merit.

From above grounds, it is gathered that the main grievance of the assessee relates to the dismissal of the appeal by the ld. CIT(A) ex-parte in limine.

Facts of the case in brief are that the AO levied the penalty u/s 271B of the Income Tax Act, 1961 amounting to Rs.77,600/- vide order dated 08.05.2007. Against the said order, the assessee filed an appeal before the ld. CIT(A) who dismissed the appeal ex- parte in limine.

Now the assessee is in appeal. The ld. Counsel for the assessee submitted that no opportunity of being heard was given.

In his rival submissions, the ld. Sr. DR supported the impugned order passed by the ld. CIT(A).

We have considered the submissions of both the parties and carefully gone through the material available on the record. In the present case, it is an admitted fact that the ld. CIT(A) passed the ex-parte order and dismissed the appeal of the assessee in limine without discussing the issue on merit and the relevant observations of the ld. CIT(A) read as under: “3. Final notice for compliance was issued on 30.11.2016 requiring the appellant to reply by 12.12.2016. In the final notice of hearing, it was mentioned specifically that in case of non- compliance, the appeal will be decided as if the appellant has no interest in the appeal filed. It is evident from the records that sufficient opportunities of being heard have already been allowed to the appellant.

From the aforesaid observations, it is crystal clear that the ld. CIT(A) simply stated that the notice of hearing was issued to the assessee. Nowhere, it is brought on record that the said notice for hearing was served upon the assessee. It is well settled that nobody should be condemned unheard as per the maxim “audi alteram partem”. We, therefore, considering the totality of the facts of the present case, deem it appropriate to set aside this issue back to the file of the ld. CIT(A) to be adjudicated afresh in accordance with law after providing due and reasonable opportunity of being heard to the assessee.

In the result, the appeal of the assessee is allowed for statistical purposes. (Order Pronounced in the Court on 09/03/2018)