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against the order of ld. Commissioner (Appeals)-9, Mumbai dated 19.01.2009 for Assessment Year 2004-05. The assessee has raised the following grounds of appeal:
(1) The learned Commissioner (Appeals) erred in dismissing the appeal in limine and accordingly erred in confirming the penalty under section 271E of Rs. 12,87,639/- in contravention of provision of section 269T of Income tax Act 1961. (2) The learned Commissioner (Appeals) erred in deciding the appeal ex parte did not considered the evidence placed before Additional Commissioner of income tax Range-9(1) Mumbai and recorded by him in his order levying penalty of Rs. 1287639/-. (3) The learned Commissioner (Appeals) therefore, erred in holding that no supporting evidence was filed.
Dying & PTG. Works Pvt. Ltd.
(4) The learned Commissioner (Appeals) erred in dismissing miscellaneous application filed dated 24th February 2009 for recall of the order and adjudication afresh on merits. (5) The appellant submits that the appellant could not file the appeal earlier as the miscellaneous application dated 19th February, 2009 is disposed off only on 1st January 2010. (6) The appellant submits that technical delay in filing the appeal the condoned and appeal be admitted and hard accordingly.
Brief facts of the case are that the assessing officer while passing assessment order for Assessment Year 2004-05 noted that the assessee has made payment of loan to various parties otherwise then by cross cheque, thereby violated the provisions of section 269Tof Income tax Act (the Act). The Assessing Officer referred the case to the Additional Commissioner of Income Tax Act (Add. CIT) for necessary action. The Add.CIT after granting opportunity of hearing to the assessee levied the penalty of Rs. 12,87,639/- for contravention of provision of section 269T of the Act vide order dated 10th March 2008. On appeal before the ld. Commissioner (Appeals) the action of Assessing Officer was confirmed.
The learned Commissioner (Appeals) dismissed the appeal as ex-parte.
The ld. Commissioner (Appeals) decided the appeal on the basis of material available on record vide impugned order dated 19th January 2009. Thereafter, the assessee filed Miscellaneous Application for recalling the ex-parte order before learned Commissioner (Appeals). The Miscellaneous Application of the assessee was also dismissed by ld. Dying & PTG. Works Pvt. Ltd. Commissioner (Appeals) vide order dated 1st December 2009, holding that the assessee is seeking the review of the order. The assessee being aggrieved by the order of ld. Commissioner (Appeals) on the order on miscellaneous application as well as in dismissing the appeal ex-parte filed the present appeal before the Tribunal.
We have heard the submission of Authorised Representative (AR) of the assessee and Departmental Representative (DR) for revenue and perused the material available on record. The perusal of record reveals that, even this appeal was dismissed twice; however, on filing miscellaneous application the order was recalled. The learned AR of the assessee submits that the ld. Commissioner (Appeals) passed the order ex-parte without giving fair and proper opportunity to the assessee. The learned AR further submits that assessee has raised specific grounds of appeal
in ground no. 1 &
2. The learned AR further submits that the assessee has furnished sufficient evidence and shown sufficient cause in making payments otherwise then cross cheques. Therefore, no penalty order was levied against the assessee.
On the other hand, the learned DR for the revenue supported the order of lower authorities. The learned DR submits that the assessee is most negligent in proper perusing the case before ld. Commissioner (Appeals).
The ld. Commissioner (Appeals) passed the order after giving sufficient opportunity, when the assessee failed to appear the order was passed on 3 Dying & PTG. Works Pvt. Ltd. the basis of material available on record. In the miscellaneous application these assessee failed to bring out any mistake apparent on the record. As there was no mistake apparent in the order, therefore the application of assessee was dismissed.
We have considered the submissions of the ld. AR of the assessee and ld. DR for the revenue and perused the record. The perusal of impugned order dated 9th January 2009 reveals that the appeal was fixed for hearing on 23rd September 2008, 15th December 2008 and finally on 15th January 2009. The learned Commissioner (Appeals) passed the order on 19.01.2009. The ld. Commissioner (Appeals) while passing the impugned order noted that there is no compliance from the assessee. We have seen that the ld. Commissioner (Appeals) further noted that assessee sought adjournment on 13th September 2008 and again on 9th December 2008. We have noted that the learned Commissioner (Appeals) before proceeding ex-parte has not recorded his satisfaction, if notice for the hearing fixed on 15th January 2009 was served upon the assessee. There is no satisfaction recorded in the impugned order that the assessee has not appeared despite the service of notice of hearing. There is no satisfaction of learned Commissioner (Appeals) that the notice was served upon the assessee or not. The learned Commissioner (Appeals) presumed that notice for the hearing was served upon the assessee.
Dying & PTG. Works Pvt. Ltd.
In para-4 of the impugned order dated 19.01.2009, the ld. Commissioner (Appeals) recorded that the appeal is decided on the basis of material on record. In the impugned order there is no reference as to what material was considered by learned Commissioner (Appeals) while passing the impugned order. Fact remains the same that the impugned order was passed ex parte. The application filed by assessee for recalling of the order was also dismissed holding that there is no mistake apparent in the order which require rectification and that the assessee was seeking review of the order.
The principal of audi alteram petrem is the basic concept of natural justice. The basic concept in this principal is that no one should be condemned unheard. This principal is sine a qua non in every judicial and quasi judicial proceedings. Admittedly the impugned order on appeal of the assessee was passed without hearing of the assessee. Therefore, keeping in view the principal audi alteram petrem the ground No. &2 raised by the assessee are allowed; resultantly the appeal is restored to the file of learned Commissioner (Appeal) to decide the appeal on merit in accordance with law. Needless to say the ld. Commissioner (Appeals) shall grant fair opportunity to the assessee before deciding the appeal.
The assessee is directed to fully co-operate and provide all evidence and information to the ld Commissioner (Appeals) and not to seek Dying & PTG. Works Pvt. Ltd. adjournment without valid reasons. In the appeal of the assessee is allowed for statistical purpose.
In the result, appeal of the assessee is allowed for statistical purpose.
Order pronounced in the open court on 25/10/2018.