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Income Tax Appellate Tribunal, MUMBAI BENCHES “C”, MUMBAI
Before: Shri Joginder Singh, & Shri Ashwani Taneja
आदेश / O R D E R
Per Joginder Singh (Judicial Member) Both these appeals are by the assessee against the impugned orders both dated 28/02/2005 & 29/05/2012 for A.Ys. 2002-03 and 2003-04 of the Ld. First Appellate Authority, Mumbai, challenging imposition of penalty u/s 271(1)(c) of the Income Tax Act, 1961 (hereinafter the Act).
2 During hearing of these appeals, Shri Dhirendra M.
Shah, ld. counsel for the assessee contended that quantum addition has been decided against the assessee and the Commissioner of Income Tax (Appeal) granted part relief to the assessee but the Tribunal reversed the order of the Commissioner of Income Tax (Appeal) and upheld the assessment order. The Assessment year 2002-03 was argued to be an ex-parte order, therefore, it was requested that the same may be sent to the file of the Commissioner of Income Tax (Appeal) for adjudication on merit. So far as, Assessment year 2003-04, is concerned, during hearing, the ld. counsel for the assessee did not press ground number one and for ground number 2, it was contended that it may also be sent to the file of the Commissioner of Income Tax (Appeal). The ld. DR, Shri Akhilesh Sharma, defended the conclusion arrived at in the impugned order.
2.1. We have considered the rival submissions and perused the material available on record. So far as, (Assessment year 2002-03), is concerned, we note that an ex-parte order was passed by the ld. First Appellate Authority on the ground that notice was issued to the assessee on 07/09/2011 for 27/09/2011 on which dated none attended. It is nowhere mentioned that this notice was actually served upon the assessee. For the date, fixed for 27/02/2012, the assessee sought adjournment as the advocate of the assessee was out of station, therefore, the appeal was fixed for 13/03/2012. However, notice of hearing for 17/05/2012 was issued on that date also nobody was attended. It is nowhere mentioned that the notice was served upon the assessee. In view of this fact, passing an ex-parte order is not justified and therefore, we are of the view, that before taking any decision, it is expected that notice has to be served upon the assessee. Considering the principle of natural justice, we remand this file to the file of the Commissioner of Income Tax (Appeal) to decide the appeal of the assessee on merit, for which, the assessee be given opportunity of being heard. Considering the past history, the assessee is directed to appear before the Commissioner of Income Tax (Appeal) within one month from the receipt of this order. The Ld. Commissioner of Income Tax (Appeal) is free to adjudicate the appeal on a mutually decided date.
Thus, the appeal of the assessee is allowed for statistical purposes.
So far as, challenging confirmation of penalty is concerned, we note that both the appeals/issues are interlinked, therefore, this appeal of the assessee is also sent to the file of the Commissioner of Income Tax (Appeal) for fresh adjudication in accordance with law. Needless to mention here that due opportunity of being heard be provided to the assessee. Thus, this appeal of the assessee is also allowed for statistical purposes.
Finally, the appeal of the assessee are allowed for statistical purposes only.
This order was pronounced in the open court in the presence of ld. representative from both sides at the conclusion of the hearing on 03/05/2016.
Sd/- Sd/- (Ashwani Taneja) (Joginder Singh) लेखा सद�य / ACCOUNTANT MEMBER �या�यक सद�य / JUDICIAL MEMBER मुंबई Mumbai; �दनांक Dated : 17/05/2016 f{x~{tÜ? P.S/.�न.स. आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. आयकर आयु�त(अपील) / The CIT, Mumbai. 4. आयकर आयु�त / CIT(A)- , Mumbai 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, मुंबई / DR, ITAT, Mumbai 6. गाड� फाईल / Guard file.