M/S BRONZE LOGISTICS PVT. LTD.,LUDHIANA vs. DCIT, LUDHIANA

PER DIVA SINGH

The present appeal has been filed by the assessee assailing the correctness of the order dated 23.09.2013 of ld. CIT(Appeals)-2 Ludhiana pertaining to 2006-07 assessment year on the following grounds 1. The Worthy Commissioner of Income Tax (Appeals) has erred in dismissing the appeal of the assessee. 2. That no proper/reasonable opportunity have been afforded to the assessee to represent the case and also that the assessee was prevented by a reasonable/sufficient cause in not attending before the CIT (A) on various dates. 3. That the penalty u/s 271(1)(c) as levied/confirmed by the Commissioner of Income Tax (Appeals) is against the facts and circumstances of the case. 2. The ld. AR inviting attention to the impugned order submitted that in the facts of the present case, the appeal of the assessee assailing the penalty order dated 27.03.2012 passed u/s 271(1)(c) of the Act has been confirmed by way of an ex-parte order wherein the assessee initially appearing and seeking time, ultimately was found to have not put in an appearance on 05.08.2013, 26.08.2013 and 03.09.2013. It was his submission that he has been instructed to state that the assessee did not receive any notice. It was his prayer that in order to afford the assessee an opportunity of being heard, the impugned order may be set aside. The ld. CIT-DR Dr. Gulshan Raj considering the record had no objection if

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the issue is restored in order to afford the assessee a reasonable opportunity of being heard and the order is passed after hearing the assessee. 3. We have heard the rival submissions and perused the material on record. It is seen qua the notice and the appearance, the following facts have been taken note of by the CIT(A) : “3. A notice for hearing dated 18.12.2013 was issued on 05.02.2013. On 18.12.2012, the case was adjourned to 02.04.2013 on appellant's request. Thereafter, the case was adjourned for 08.05.2013, 11.07.2013, 18.07.2013 and 05.08.2013 on appellant's request. On 05.08.2013 no one appeared, therefore, the case was refixed for 26.08.2013. On 26.08,2013, once again the case was adjourned to 03. 09.2013. On 03.09.2013, again no one appeared. The case was refixed for 19.09.2013 but again no one appeared. The aforesaid position, implies that the appellant is not interested to pursue its case. In the absence of any reply from the appellant, the matter is being decided ex-party. The maxim vigilantibus, non dormientibus, jura subveniunt". i.e. “the law assist this whose are vigilant and not those who sleep over their rights’ is applicable in this case.” 3.1 A perusal of the above shows that probably in the first line, there is a typo as the date of hearing is stated to be 18.12.2013 and the notice is stated to have been issued on 05.02.2013 and then the position as on 18.12.2012 was taken note of. It is seen that the order is passed on 23.09.2013. Presumably 18.12.2013 would be 18.12.2012 as noted in the second sentence of the second line of the aforesaid para. A perusal of the same shows that the assessee was putting in appearance through out April, May and July and only in August and September, the assessee appears not to have put in appearance. Since mode of communicating of fixing the date of hearing is not mentioned, in the said background accepting the oral undertaking given by the ld. AR that the assessee shall participate and thus considering the submissions of the parties before the Bench where the said request of the assessee was not opposed by the ld. CIT-DR, we deem it appropriate to set aside the impugned order in the interests of substantial justice and restore the issue back to the file of the CIT(A) with the direction to pass speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard. While so directing, it is advised that the assessee in its own interest participates fully and fairly in the proceedings before the CIT(A) as in the eventuality of abuse of the same, the CIT(A) would be at liberty to pass an order on the basis of material available on record. Said order

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was pronounced in the Open Court at the time of hearing itself. 4. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the Open Court on 11.05. 2018.

Sd/- Sd/-

(ANNAPURNA GUPTA) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER

‘Poonam’ Copy to: 1. The Appellant 2. The Respondent 3. The CIT 4. The CIT(A) 5. The DR Asstt. Registrar ITAT Chandigarh