PROGRESSIVE MEGA STRUCTURES PVT. LTD.,NEW DELHI vs. ITO, NEW DELHI

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ITA 5753/DEL/2014Status: DisposedITAT Delhi22 September 2017AY 2009-104 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal noted that the CIT(A) passed an ex-parte order without ensuring proper service of notice and without giving the assessee a reasonable opportunity to be heard. The matter was set aside for fresh adjudication.

What were the facts?

The assessee filed a return declaring a loss. The AO made additions under Section 68 and disallowed expenses. The CIT(A) decided the appeal ex-parte and enhanced the income.

What were the issues?

Whether the CIT(A) erred in passing an ex-parte order without providing a reasonable opportunity of being heard to the assessee.

Which sections of the Income-tax Act were involved?

Section 68

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, DELHI BENCH ‘F’, NEW DELHI

Hearing: 21.09.2017Pronounced: 22.09.2017

ORDER

Per N. K. Saini, AM:

1.

This is an appeal by the assessee against the order dated 27.11.2013 of ld. CIT(A)-XVII, Delhi.

2.

During the course of hearing nobody was present on behalf of the assessee neither any adjournment was sought. We, therefore, proceeded ex-parte and the appeal is decided after hearing the ld. DR.

3.

The main grievance of the assessee vide Ground Nos. 1 to 3 relates to the ex-parte order passed by the ld. CIT(A) without giving reasonable opportunity of being heard.

2 Progressive Mega Structures Pvt. Ltd. 4. Facts of the case in brief are that the assessee e-filed return of income on 31.03.2011 declaring a loss of Rs.17,20,459/-. Later on, the case was selected for scrutiny. The AO framed the assessment at an income of Rs.66,26,611/- by making the addition of Rs.64,57,350/- u/s 68 of the Income Tax Act, 1961 (hereinafter referred to as the Act) and disallowing the expenses of Rs.18,89,720/-.

5.

Being aggrieved the assessee carried the matter to the ld. CIT(A) who decided the appeal ex-parte and enhanced the income to Rs.1,94,76,490/-.

6.

Now the assessee is in appeal. The ld. DR supported the impugned order passed by the ld. CIT(A) and further submitted that the assessee did not cooperate. Therefore, there was no alternative with the ld. CIT(A), except to decided the appeal ex-parte.

7.

We have considered the submissions of the ld. DR and perused the material available on the record, it is noticed that the ld. CIT(A) decided the appeal of the assessee ex-parte by observing in paras 4 & 4.1 of the impugned order as under: “4. During the course of appellate proceedings notices were issued to the appellant to attend the proceedings as per details given below:- "The first notice was issued to the appellant on 29.04.2013 fixing the case for hearing on 14.05.2013. The notice was 3 Progressive Mega Structures Pvt. Ltd. sent by speed post at the address given in the appeal memo at the registered office of the appellant company. Again a fresh notice was issued on 05.09.2013 fixing the case for hearing on 18.09.2013. But the notice was returned back un-served with the remarks "Left the address". Another notice was issued on 13.09.2013 fixing the case for hearing on 25.09.2O13. The AR of the appellant filed an application for adjournment and the case was adjourned for 04.10.2013. The appellant had not informed of any change of address." 4.1. Notices were issued to the appellant at the address given in the appeal memo which is "M/s. Progressive Mega Structures (P) Ltd., 14/1, East Patel Nagar, New Delhi - 110008". The notice was ultimately sent at the address of the AR of the appellant. The AR moved an application for adjournment to 04.10.2013 on which date there was no compliance. Since the appellant is not attending the appellate proceedings and not complying to notices issued. I am completing the case ex-parte on the basis of documents on record and on merit.”

8.

From the above observations of the ld. CIT(A), it is noticed that the appeal fixed for hearing before him on 25.09.2013 was adjourned for 04.10.2013. The ld. CIT(A) mentioned that the assessee had not informed of any change of address. It, therefore, appears that intimation regarding the date for hearing was not intimated to the assessee. It is not brought on record as to whether the notice for hearing was served upon the assessee. It is also noticed that the assessee in its grounds of appeal

had stated that no notice for hearing was served upon the assessee. It is well settled that nobody should condemned unheard as per the maxim

4. Progressive Mega Structures Pvt. Ltd. “audi alteram partem”. In the present case, it is also not clear as to whether the enhancement notice was served upon the assessee. We, therefore, considering the totality of the facts, 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.

9.

In the result, the appeal of the assessee is allowed for statistical purposes. (Order Pronounced in the Court on 22/09/2017)

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