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Income Tax Appellate Tribunal, DELHI BENCH “F”, NEW DELHI
Before: SHRI H.S. SIDHU & SHRI PRASHANT MAHARISHI
Date of Hearing : 13-04-2016 Date of Order : 05-05-2016
ORDER PER H.S. SIDHU : JM These appeals by the Assessee are directed against the separate Orders of the Ld. Commissioner of Income Tax (Appeals)- XVII, New Delhi both dated 28.7.2014 passed in Appeal NO. 105/13-14 & 106/13-14 respectively pertaining to assessment year 2010-11. Since these appeals belong to same assessee and related to same assessment year i.e. 2010-11, hence, these appeals were heard together and are being disposed of by this common order for the sake of brevity.
ITA NOS. 1261-1262/Del/2015
The facts narrated by the revenue authorities are not disputed by both the parties, hence, the same are not repeated here for the sake of brevity.
At the time of hearing, Ld. Counsel of the Assessee stated that no notice of hearing was received by the assessee from the Ld. CIT(A), therefore, its Authorised Representative could not attend hearing before the Ld. CIT(A). He further stated Ld. CIT(A) has not provided sufficient opportunity to the assessee for substantiating its claim before him and completed the appellate proceedings exparte and wrongly upheld the penalties in dispute in both the appeals.
Therefore, he requested that the issues in dispute in both the appeals may be set aside to the file of the AO with the directions to pass fresh orders after providing full opportunity to the assessee of hearing in both the cases.
On the contrary, Ld. DR strongly opposed the request of the assessee and stated that Ld. CIT(A) has provided sufficient opportunity to the assessee for substantiating its claim before him, but the assessee did not avail the same. Therefore, the issue may be decided by this Bench on merits only.
We have heard both the parties and perused the relevant records especially the orders passed by the Revenue Authorities. On ITA NOS. 1261-1262/Del/2015 going through the impugned order dated 28.7.2014 in both the appeals, we find that vide para no. 4 the Ld. CIT(A) has observed as under:-
“4. During the appellate proceedings, the first notice was issued to the appellant on 17.6.2014 fixing the case for hearing on 30.6.2014. The notice was sent by speed post at the address given in the appeal memo which was “8/39, Mehram Nagar,
Opposite Palam Airport, New Delhi – 110010”. The notice was returned back with remarks “Left”. A fresh notice was issued to the appellant from this office on 09.7.2014 fixing the case for hearing on 24.07.2014. The notice was sent by affixture, through the Notice Server. The notice servicer reported “I, Sh. Prakash Chand, Process Server, o/o the Income Tax Officer, Ward 14(2), New Delhi, solemnly affirm and stated that under the order of the Commissioner of Income Tax (Appeals)-XVII,
New Delhi, I have affixed the notices u/s. 250 of the I.T. Act, 1961 for AY 2010-11, respect of appeals against the order u/s. 271D & 271E, addressed to the above mentioned assessee, at the ITA NOS. 1261-1262/Del/2015 premises “8/39, Mehram Nagar, Opposite Palam
Airport, New Delhi – 110010” the last known address of the assessee as the same could not be served personally.” On 24.7.2014, there was no compliance by the appellant and no one attended.
Since the appellant is not attending the proceedings
I am completing the case on the basis of documents on record and on merit exparte.”
5.1 After perusing the above finding, we find that Ld. CIT(A) in her Appellate orders dated 28.7.2014, has sent the notice on the wrong address of the assessee and also the Process Service/Notice Server of the Department has affixed the Notice on the wrong address i.e. 8/39, Mehram Nagar, Opposite Palam Airport, New Delhi – 110 010. However, as per the records of the Income Tax Department, mentioned in the assessment order dated 28.3.2013 as well as mentioned in the Ld. CIT(A)’s order dated 28.7.2014 the correct address of the Assessee is “M/s Phoenix Air Express Pvt. Ltd., 8/139, Mehram Nagar, Opp. Palam Airport, New Delhi – 110 001”.
5.2 Keeping in view of the facts and circumstances of the case the non-appearance of the assessee’s before the appellate authority is ITA NOS. 1261-1262/Del/2015 due to non- receiving the notice of hearing, which was sent by the Ld. CIT(A) at a wrong address. Therefore, in the interest of justice, the issues in dispute in both the appeals, may be set aside to the file of the AO to pass a fresh order after providing full opportunity to the assessee of hearing. We hold and direct accordingly.
In the result, both the Appeals filed by the Assessee stands allowed for statistical purposes.
Order pronounced in the Open Court on 05/05/2016.