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Income Tax Appellate Tribunal, DELHI BENCH ‘SMC, NEW DELHI
Before: Sh. N.K. Saini
ORDER PER N.K.SAINI, AM : This is an appeal by the assessee against the order dated 27.03.2017 of CIT(A)-16, New Delhi.
During the course of hearing nobody was present on behalf of the assessee neither any adjournment was sought. I, therefore, proceed ex-parte qua the assessee.
The grievance of the assessee in this appeal relates to the ex parte order passed by the ld. CIT(A) without giving an opportunity of being heard and in confirming the addition of Rs. 12,56,860/- made by AO u/s 147 r.w.s 143(3) of the Income Tax Act, 1961 ( hereinafter referred to as the Act).
Rajendra Kumar Jain 4. Facts of the case in brief are that an action u/s 147 of the Act was taken by the AO on the basis of information received from Director General of Income Tax (Investigation wing) that the assessee had received accommodation entries. The AO issued the notice u/s 148 of the Act. In response the assessee vide reply dated 20.11.2015 stated that his assessment for the assessment year 2012-13 had been completed by the AO at Kolkata. He furnished the copy of assessment order and copy of ITR acknowledgement filed electronically in support of his contention. However, the AO framed the assessment at an income of Rs. 15,05,650/- by making the addition of Rs. 12,56,860/-.
Being aggrieved the assessee carried the matter to the ld. CIT(A) who dismissed the appeal ex-parte by observing as under :-
“I have perused the submission of the Ld. AR, the factual position is that the appellant should have filed the appeal as provided in Rule 45 of Income Tax Rules, 1962 and CBDT no. 20/2016 dated 26/05/2016. The mere fact that the appeal was received in the office does not necessarily makes the appeal valid. Even issuing of notice on that shall not change character of the paper appeal.
The AR has also argued for condonation of delay of 35 days. However the same is rejected as the appeal filed is not valid and is non est. The issue of condonation of delay shall arise, only if the appeal filed is valid. Therefore, the paper appeal filed by the appellant vide letter dated 19/04/2016 is dismissed, being invalid. However this order does not take away the right to appeal, from the appellant. The appellant can still e-filed his appeal and seek condonation of delay as per law.
Rajendra Kumar Jain In the result the appeal of the appellant is dismissed.”
Now the assessee is in appeal.
The ld. DR supported the order of the ld. CIT(A). I have considered the submission of the ld. DR and perused the material available on the record. In the present case, it is an admitted fact that the ld. CIT(A) decided the appeal of the assessee ex-parte without giving an opportunity of being heard. It is well settled that nobody should be condemned unheard as per the maxim “Audi Alteram Pertam”. I, therefore,deem it appropriate to set aside the impugned order and remand the case back to the file of the ld. CIT(A) to be adjudicated afresh inaccordance 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.