Sh. Balbir Singh, Chandigarh V. ITO, Chandigarh

ITA 1468/CHANDI/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8242 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 30-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA NO. 1468/CHD/2016 ASSESSMENT YEAR: 2010-11 SHRI BALBIR SINGH, VS THE ITO, HOUSE NO. 162, WARD 5(4), VILLAGE - KAJHERI, CHANDIGARH. CHANDIGARH. PAN: AZCPS0121K (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PARIKSHIT AGG ARWAL RESPONDENT BY : SHRI S.K.MITTAL, DR DATE OF HEARING : 21.02.2017 DATE OF PRONOUNCEMENT : 01.03.2017 O R D E R THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF LD. CIT(APPEALS)-2 GURGAON DATED 29.09 .2016 FOR ASSESSMENT YEAR 2010-11. 2. I HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PAR TIES. 3. THE LD. CIT(APPEALS) DECIDED THE APPEAL OF THE ASSESSEE EX-PARTE. THE LD. CIT(APPEALS) NOTED IN T HE IMPUGNED ORDER THAT THE FIRST NOTICE WAS ISSUED ON 12.07.2016 THROUGH POST WHICH HAVE BEEN SERVED UPON ASSESSEE AND AGAIN ANOTHER NOTICE WAS ISSUED ON 17.08.2016 THROUGH POST AND REMARKS HAVE BEEN GIVEN 2 NOT KNOWN. THE LD. CIT(APPEALS), ACCORDINGLY, DE CIDED THE APPEAL OF THE ASSESSEE HOLDING ASSESSEE IS NOT INTERESTED IN PURSUING THE APPEAL. THE LD. CIT(APP EALS) PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. 4. THE LD. COUNSEL FOR THE ASSESSEE FILED AFFIDAVIT OF THE ASSESSEE AFFIRMING THEREIN THAT NONE OF THE NOTICE HAVE BEEN SERVED UPON ASSESSEE AS IS MENTIONED IN THE IMPUGNED ORDER. HE HAS SUBMITTED THAT ASSESSEE IS INTERESTED IN PURSUING THE APPEAL, THEREFORE, EX-PA RTE ORDER MAY BE RECALLED AND APPEAL OF THE ASSESSEE MA Y BE RESTORED TO THE FILE OF LD. CIT(APPEALS). ON THE O THER HAND, LD. DR RELIED UPON IMPUGNED ORDERS. 5. AFTER CONSIDERING RIVAL SUBMISSIONS, I AM OF THE VIEW MATTER REQUIRES RE-CONSIDERATION AT THE LEVEL OF TH E LD. CIT(APPEALS). THE LD. CIT(APPEALS) NOTED THAT NOTI CE FOR 12.07.2016 HAVE BEEN SERVED THROUGH POST, HOWEVER, ASSESSEE DENIED IN THE AFFIDAVIT OF SERVICE OF ANY NOTICE UPON ASSESSEE. FURTHER, THE NOTICE ISSUED ON 17.08 .2016 IS ADMITTEDLY NOT SERVED UPON ASSESSEE, EVEN AS PER THE IMPUGNED ORDER OF THE LD. CIT(APPEALS). THEREFORE, THERE WAS NO JUSTIFICATION FOR LD. CIT(APPEALS) TO HAVE P ASSED EX-PARTE ORDER THEREAFTER ON 29.09.2016. FURTHER, THERE WAS A HUGE TIME GAP BETWEEN LAST NOTICE FOR 17.08.2 016 TO 29.09.2016 THEREFORE, IF LD. CIT(APPEALS) WANTED TO PROCEED EX-PARTE BUT DID NOT PASS THE ORDER FOR A CONSIDERABLE PERIOD, ONE MORE OPPORTUNITY CAN BE GI VEN 3 TO THE ASSESSEE TO ARGUE THE APPEAL. SINCE LAST NO TICE IS ADMITTEDLY NOT SERVED UPON ASSESSEE ISSUED ON 17.08.2016, THEREFORE, THERE IS NO JUSTIFICATION TO PASS EX-PARTE ORDER. IN THIS VIEW OF THE MATTER, I SET ASIDE THE ORDER OF THE LD. CIT(APPEALS) AND RESTORE THIS ISSU E TO HIS FILE WITH DIRECTION TO RE-DECIDE APPEAL OF THE ASSE SSEE IN ACCORDANCE WITH LAW BY GIVING REASONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DATED : 1 ST MARCH,2017. POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT,DR ASSISTANT REGISTRAR, ITAT CHANDIGARH