M/S. ASLAM INT UDYOG,NEW DELHI vs. ITO, UTTAR PRADESH

The grievance of the assessee in this appeal relates to the dismissal of the appeal in limine by the ld. CIT(A) ex-parte without providing opportunity of being heard.

Facts of the case in brief are that since the assessee failed to furnish its income within the time allowed u/s 139(1) of the Income Tax Act, 1961 (hereinafter referred to as the Act), the AO issued notice u/s 148 of the Act. In response to the said notice, the assessee filed return on 17.11.2004 declaring an income of Rs.7/-. Thereafter, the case was selected for compulsory scrutiny. The assessment was framed by the AO ex-parte u/s 144 of the Act for the reason that the assessee failed to 2 Aslam Int Udyog make the compliance of the notices issued u/s 143(2) and 142(1) of the Act dated 07.09.2005 and 21.09.2005 which had returned back unserved by the Postal Authority with the remarks “out of station”. The AO framed the assessment at an income of Rs.4,02,000/-.

Being aggrieved the assessee carried the matter to the ld. CIT(A) who dismissed the appeal ex-parte in limine by observing in para 3 of the impugned order as under: “3. This case has a history of non attendance before the first Appellate authority. The last notice (final opportunity) has not been responded to either. It appears that the same situation prevailed before the AO also who was constrained to pass an ex- parte order. In view of this fact there is no material available with this appellate authority to enable taking a contrary view to what has been done by the ld. AO and this appeal is dismissed.” 5. Now the assessee is in appeal. The ld. Counsel for the assessee submitted that neither the AO nor the ld. CIT(A) appreciated the facts in right perspective and the additions made/sustained are arbitrary. It was further submitted that no notice issued either by the AO or the ld. CIT(A) was received by the assessee. He requested to remand the case back to the file of the AO to be adjudicated afresh after providing due and reasonable opportunity of being heard. 6. The ld. DR in his rival submissions opposed the setting aside of the case to the file of the AO and submitted that ample opportunities were given but the assessee did not comply with the notices issued either by the AO or the ld. CIT(A).

3 Aslam Int Udyog 7. I have considered the submissions of both the parties and perused the material available on the record. In the present case, it is noticed that the AO himself admitted in the assessment order dated 17.03.2006 passed ex-parte u/s 144 r.w.s. 148 of the Act that the notices issued were returned back by the Postal Authority. Thereafter, no efforts were made to serve the notice on the assessee. Similarly, the ld. CIT(A) simply stated that the last notice had not been responded by the assessee but nothing is brought on record that the notice was served upon the assessee. It is well settled that nobody should be condemned unheard as per maxim “audi alteram partem”. I, therefore, considering the totality of the facts, deem it appropriate to set aside this case back to the file of the AO to be decided afresh in accordance with law after providing due and reasonable opportunity of being heard to the assessee.

In the result, the appeal filed by the assessee is allowed for statistical purposes. (Order Pronounced in the Court on 21/11/2016)