Quashing order passed by the CIT(A) "without providing the opportunity of being heard" to assessee

IN THE INCOME TAX APPELLATE TRIBUNAL

DELHI BENCH ‘F’: NEW DELHI

BEFORE SHRI G.E.VEERABHADRAPPA, VICE PRESIDENT

AND SHRI A.D.JAIN, JUDICIAL MEMBER

ITA No.1248/Del/2011

Assessment Year: 2006-07

M/s Rexall Estate Pvt.Ltd.,

N-140, Greater Kailash-I,

New Delhi – 110 048.

PAN No.AADCR1395K.

(Appellant)

Vs.

 Income Tax Officer,

Ward-15(3),

New Delhi.

(Respondent)

Appellant by: Shri Anil Kumar Grover, AR.

Respondent by: Smt.Anusha Khurana, Sr.DR.

ORDER

PER G.E.VEERABHADRAPPA, VP:

This is assessee’s appeal for AY 2006-07, taking the following grounds:-

“1. On the facts and in the circumstances of the case, the CIT(A)-XVIII has erred, both on facts and in law, in refusing/failing to consider the facts that one of the Director of the company was not well at all. In the circumstances no business was done during that period and the appeal proceedings were not taken up by the assessee company.

2. That the assessee’s company records, documents, submissions, confirmation and pleas of the appellant in respect of all the grounds and rejected the same mechanically “without providing the opportunity of being heard” only on the pretext of the same not having been placed before the ITO and the impugned order passed by the CIT(A) is therefore, illegal and unsustainable and hence liable to be set aside and quashed.

3. The first appellate authority is duty bound to consider all the factual and legal submissions, records documents and pleas placed by the appellant as the appeal is the continuation of original proceedings in assessment and the CIT(A) ought to have done whatever the ITO should have done, correctly, both on facts and in law, as the powers are co-extensive and co-terminus and failure to do so has vitiated the impugned order which is liable to be set aside.

4. The authorities below have erred both on facts and in law, in confirming illegal additions of Rs.1317,300/- on account of unexplained cash credits u/s 68 without giving the concerned authority opportunity of being heard and hence the impugned illegal additions must be deleted and declared to be unsustainable, both on facts and in law.”

2. The impugned order was passed by learned CIT(A) ex-parte qua the assessee, observing, inter-alia, as follows:-

“2. Notices u/s 250 dated 22.07.2009, 18.09.2009 & 09.10.2009 were issued fixing the case for hearing on 18.08.2009, 24.09.2009 & 29.10.2009 respectively. The notices were sent at the appellant’s address at N 140, Greater Kailash-I, New Delhi – 110048 as per the appellant’s address on record by speed-post. All notices were come back with the remarks “No firm of this company”. Needless to say, nobody appeared on the above dates for the hearings. However, after the anointed dates, as per record one Mr.K.P.Singh has filed a power of attorney and an affidavit purportedly from Mr.V.K.Sharma, Director of the assessee company requesting that his residential address at Sarvapriya Vihar, New Delhi be used for correspondence instead of the registered address of the company at N 140, Greater Kailash-I, New Delhi. The case was accordingly, fixed for hearing on 25.11.2009 by issue of notice dated 06.11.2009. However, the assessee company filed an adjournment application dated 25.11.2009 saying that they are busy for time barring assessments with the income tax department and requesting for adjournment of the case to last week of December 2009. The case was, accordingly, fixed on 23.12.2009. However, again the appellant company filed another application seeking adjournment. The case was, accordingly, fixed on 12.01.2010. However, again on the above date the appellant filed an adjournment application seeking adjournment upto second week of February 2010. the case was, accordingly, again fixed on 17.02.2010. However, on that day also nobody appeared and no submissions were filed. No adjournment petition was also filed on the above day or any time thereafter. In view of the above, it is clear that the appellant is not interested in pursuing the appeal and is only trying to delay the proceedings by initially not appearing and thereafter only filing adjournment applications. The above action of the appellant in seeking adjournments repeatedly and not appearing is prejudicial to the functioning of the government authorities as it not only delays the completion of various proceedings but also causes avoidable waste of time and energy of government department in handling these matters. I also find that the appellant has not completed with the assessment proceeding by not appearing which is evident from the assessment order. Considering the same, the appeal filed cannot be proceeded with and the same is, therefore, dismissed.”

3. A perusal of the above shows that though the assessee was proceeded ex-parte, the learned CIT(A) has not decided the matter on merits.

4. Accordingly, the matter is remitted to the file of the learned CIT(A) to be decided on merits in accordance with law. In the interest of justice, the assessee shall also be provided an opportunity of hearing. The assessee, no doubt, shall cooperate with the learned CIT(A).

5. In the result, for statistical purposes, the appeal of the assessee is treated as allowed.

Decision pronounced in the open Court on conclusion of hearing on 12th May, 2011.

Sd/- Sd/-

(A.D.JAIN) (G.E.VEERABHADRAPPA)

JUDICIAL MEMBER VICE PRESIDENT

Dated: 12.05.2011.

VK.

Copy forwarded to:

1. Appellant

2. Respondent

3. CIT

4. CIT(A)

5. DR, ITAT

Assistant Registrar