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Income Tax Appellate Tribunal, DELHI BENCH: ‘A’, NEW DELHI
Before: SH. AMIT SHUKLA & SH. O.P. KANT
This appeal by the assessee is directed against order dated 30/09/2014 passed by the Commissioner of Income Tax (Appeals)-XXX, New Delhi [in short ‘the CIT-(A)’] in relation to tax liability under section 201(1) of the Income-tax Act, 1961 (in short ‘the Act’) and interest liability under section 201(1A) of the Act, for non-deduction of tax at source in financial year 2005-06. The grounds of appeal raised by the assessee are reproduced as under:
“1. That the Id CIT (Appeals) has erred both in law and on facts in not deciding the appeal on merit and instead dismissing the same ex-parte in violation of the principles of natural justice without granting to the assessee a fair, proper and reasonable opportunity of being heard. The finding that after 15.07.2011 the appeal was fixed eight times and that the appellant is not interested to finalized the case, is wholly incorrect and is contrary to material on record.
2. The learned CIT (A) has failed to appreciate that assess has furnished all relevant material/documents for disposal of the appeal on merit.
3. That the learned CIT(A) has failed to appreciate that the issue involved in the present appeal was covered by the order office predecessor. It is therefore prayed that the order of the authorities below be set aside and the CIT(A) be directed to decide the appeal on merits.”
At the outset, the Ld. counsel submitted that impugned order has been passed ex-party in violation of principle of natural Justice and no reasonable opportunity of being heard was given. He further submitted that the ld. CIT(A) has dismissed the appeal without deciding the matter on merit. He requested that matter might be restored back to the file of the Ld. CIT-(A) for deciding the issue on merit.
Learned Sr. DR, on the other hand, opposed for restoring the appeal back to the Ld. CIT-(A) on the ground that the appeal was fixed eight times but none attended before the learned CIT-(A) and therefore, the assessee had been already provided more than sufficient opportunity.
We have heard the rival submission and perused the relevant material on record. The Ld. CIT-(A) adjudicated the appeal with following findings:
“2. Aggrieved appellant filed appeal before the undersigned. In compliance to appellate notice Sh. Amit Sharma, Advocate attended on 18.07.2013 and take adjournment for filing the grounds of appeal of 18.08.2013. In this case the first hearing was fixed on 15.07.2011. From that date till today approximately 8 times hearings were fixed and appellant is not interested to finalize the case.
3. After considering the facts of the case, the appeal filed by the appellant is decided ex-party, it is dismissed. If appellant will appeal and prove that there was a reasonable cause for not attended on the hearing, order may be recalled and will be decided on merits after considering the submission of the appellant.”
5. On perusal of the above finding and after considering the rival submissions, we are of the view that the matter requires reconsideration at the level of learned CIT-(A). According to the section 250(6) of the Act, the learned CIT-(A) at the time of deciding the appeal of the assessee, is required to mention point for determination of reasons for decision of the appeal order. Even if, the assessee did not appear before him, the Ld. CIT-(A) is bound to decide the appeal of the assessee on merits by giving reasons for decision in the appeal order. In the present case, the Ld. CIT-(A) has simply dismissed the appeal of the assessee for non- prosecution. Therefore, the order of the learned CIT-(A) cannot be sustained in law. Further, on perusal of the impugned order, we find that on first hearing, the counsel of the assessee attended and sought adjournment and thereafter, he did not appear before the learned CIT- (A). In our opinion, for the negligence on the part of the Authorized Representative, the assessee should not suffer substantive Justice.
6. We, accordingly set aside the impugned order of the Ld. CIT-(A) and restore the appeal of the assessee to his file with the direction to decide the appeal in accordance with law and pass a speaking order deciding the issue on merit by giving reasonable and sufficient opportunity of hearing to the assessee. The assessee is also directed to ensure his presence either in person or through Authorized Representative. The grounds of the appeal are allowed for statistical purposes. 7. In the result, appeal of the assessee is allowed for statistical purposes.
The decision is pronounced in the open court on 4th Oct., 2017.