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Income Tax Appellate Tribunal, DELHI BENCH “E”: NEW DELHI
Before: SHRI AMIT SHUKLA & SHRI PRASHANT MAHARISHI
order dated 15.3.2016 passed by the Ld. CIT(A)-IV, Kanpur for the assessment year 2009-10. The assessee has raised following grounds:-
“1.On receipt of the notice of hearing, the Company informed the counsel M/s. B.K. Kapoor & Co. (CA) and requested to pursue the appeal. We are informed that office of the counsel requested for adjournment of the appeal and fixation of the same at next camp at Ghaziabad on the ground that representation at Kanpur would involve two nights journey and the whole day and will be quite expensive and inconvenient.
On facts and in law thus the Ld. CIT(A) was not justified to dismiss the appeal ‘’in limine’ for non attendance by Appellant in view of the ratio laid down by Higher Courts.
3.That the Ld. CIT(A) ought to have adjudicated the issue as per grounds of appeal. Non adjudication of the appeal on merit as per grounds of appeal vitiate the Appellate order.
4.That the addition of Rs. 2,60,384/- made by the Ld. Assessing Officer and sustained by the Ld. CIT(A) without adjudicating the merit deserves to be deleted.
5.That interest under section 234A, 234B,234C and 234D was not chargeable. Levy of interest under the said provision deserves to be deleted being illegal, void, without jurisdiction and untenable on facts and in law.”
2. At the outset the Ld. Counsel for the assessee submitted that the appeal of the assessee before the Ld. CIT (A) has been decided ex parte both for the assessment years 2009-10 and 2011-12. In A.Y. 2011-12, the Tribunal has already set aside similar exparte order to the file of the Ld. CIT (A) to be decided afresh. Therefore, this matter should also be remanded back to the file of the Ld. CIT (A). Otherwise also on merits he submitted that there is a clear cut case in favour of the assessee.
After considering the impugned order we find that Ld. CIT(A) has decided the appeal ex parte without going into the merits of the case on the first date of hearing itself. The Tribunal against the same appellate order has remanded back to the Ld. CIT(A) after observing and holding as under :-
“5. We have heard the submissions and perused the material available on record. On consideration thereof, we are of the view that the impugned order does not meet the statutory requirements as set out in section (6) of section 250 of the Income Tax Act.
Accepting the oral undertaking of the Ld. AR that the assessee shall participate in the proceedings before the CIT(A) the impugned order is set aside back to the file of the said authority with the direction to pass a speaking order in accordance with law, after giving the assessee a reasonable opportunity of being heard.
While so directing it is hoped that the opportunity so provided is utilised by the assessee by making full and proper participation before the CIT(A). In the eventuality of abuse of the same, it is made clear that Ld. CIT(A) would be at liberty to pass an order on the basis of material available on record.”
Thus, in line with the same precedence, we also remand back the matter to the file of the Ld. CIT(A) to pass fresh order after giving due opportunity to the assessee on merits and in accordance with law.
In the result appeal of the assessee is allowed.