Shri Hari Har Yadav, Durgapur V. Addl. CIT, Range - 2, Durgapur, Durgapur

ITA 974/KOL/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54528 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-09-2011
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 01-07-2011
• Court: TRIBUNAL
• Department Lawyers: P P SARKAR
• Assessee Lawyers: N O N E
• Keywords: Opportunity of being heard; Set aside
• Section: 250

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA () BEFORE . . , !' # # # # /AND $# , !' ) [BEFORE HONBLE SHRI S. V. MEHROTRA, AM & HONBLE S RI MAHAVIR SINGH, JM] #% #% #% #% / I.T.A NO. 974/KOL/2011 $&' () $&' () $&' () $&' ()/ // / ASSESSMENT YEAR: 2007-08 SRI HARI HAR YADAV VS. ADDL. COMMISSIONER OF I NCOME-TAX, (PAN-AAKPY 2276 Q) RANGE-2, DURGAPUR (+, /APPELLANT ) (-.+,/ RESPONDENT ) FOR THE APPELLANT: N O N E FOR THE RESPONDENT: SHRI P. P. SARKAR DATE OF HEARING: 15.09.2011 DATE OF PRONOUNCEMENT:15.09.2011 !/ / ORDER PER MAHAVIR SINGH, JM ( $# $# $# $#, , , , !' !' !' !' ) THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-DURGAPUR IN APPEAL. NO. 105/CIT(A)/DGP/2009-10 DATED 27.04.2011. ASSESSMEN T WAS FRAMED BY ADDL. CIT, RANGE-2, DURGAPUR U/S.143(3) OF THE INCOME TAX ACT, 1961 (HE REINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2007-08 VIDE HIS ORDER DATED 31.12. 2009. 2. AT THE TIME OF HEARING NONE WAS PRESENT FOR AND ON BEHALF OF ASSESSEE BUT AN APPLICATION DATED 7.9.2011 WAS PLACED IN FILE FOR ADJOURNMENT. AFTER CONSIDERING ADJOURNMENT PETITION, WE REJECTED THE SAME AND THE APPEAL HAS BEEN HEARD AFT ER HEARING LD. DR. 3. THE ISSUE IN THIS APPEAL OF THE ASSESSEE IS AGAI NST THE ORDER OF CIT(A) IN DISMISSING THE ASSESSEES APPEAL WITHOUT GIVING REASONABLE OPPORTU NITY OF BEING HEARD TO ASSESSEE. FOR THIS, ASSESSEE HAS RAISED FOLLOWING FOUR EFFECTIVE GROUND S: 1. THAT THE APPELLATE ORDER PASSED BY THE LD. CIT (A) IS ARBITRARY, ERRONEOUS, INVALID AND BAD IN LAW. 2. THAT THE APPEAL WAS DISMISSED WITHOUT AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE APPELLANT. 3. THAT THE APPEAL WAS DISMISSED WITHOUT CONSIDERIN G THE ADJOURNMENT PETITION FILED BY THE APPELLANT ON 19.04.2011 ON VALID GROUN DS. 4. THAT THE APPEAL WAS DISMISSED WITHOUT CONSIDERIN G THE STATEMENT OF FACTS AND GROUNDS OF APPEALS SUBMITTED ALONG WITH FORM-35 BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS), DURGAPUR. 4. WE HAVE HEARD LD. DR AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSEE ENGA GED IN THE BUSINESS OF CIVIL AND TRANSPORTATION 2 ITA 974/K/2011 SRI HARI HAR YADAV, A.Y.07-08 CONTRACTOR AND FILED HIS RETURN OF INCOME DECLARING HIS TOTAL INCOME AT RS.19,03,861/-, WHEREAS TOTAL INCOME HAD BEEN ASSESSED BY ASSESSING OFFICER AT RS.24,16,546/-. AGGRIEVED ASSESSEE PREFERRED APPEAL BEFORE CIT(A), WHO IN TURN DISMISS ED THE ASSESSEES APPEAL BY OBSERVING AS UNDER NOTICES U/S. 250 WAS ISSUED BUT IN RESPONSE NONE A PPEARED. IN ALL THREE OPPORTUNITIES HAVE BEEN GIVEN TO THE APPELLANT WHICH WERE ON 8.3.2011, 23.3 .2011 AND 21.4.2011. NONE OF THESE HAVE BEEN AVAILED BY THE APPELLANT. IT APPEARS THEREFORE THA T THE APPELLANT IS NOT INTERESTED TO PURSUE THE APPELLATE PROCEEDINGS. UNDER THE CIRCUMSTANCES, I DO NOT SEE ANY REASON TO INTERFERE WITH THE A.OS ORDER. THE APPEAL IS ACCORDINGLY DISMISSED. AGGRIEVED, NOW ASSESSEE IS IN APPEAL BEFORE US. 5. WE FIND THAT THE CIT(A) DID NOT ENTER INTO THE M ERIT OF THE CASE INSTEAD HE JUST DISMISSED THE ASSESSEES APPEAL EX PARTE WITHOUT GIVING SUFFI CIENT OPPORTUNITY TO THE ASSESSEE SINCE HE ABSENTED ON THE GIVEN DATES FOR HEARING BEFORE HIM. WE FIND THAT APPELLATE AUTHORITY HAS NO JURISDICTION TO DISMISS THE APPEAL FOR DEFAULT OF N ON PROSECUTION WITHOUT GOING INTO MERITS. IT IS BOUND TO DECIDE THE APPEAL ON MERITS EVEN IN THE AB SENCE OF ASSESSEE. THIS VIEW OF OURS IS SUPPORTED BY THE DECISION OF SOUTHERN STEEL INDUSTR IES VS AAC (CT) (1996) 101 STC 273, 278 (MAD), REED RELAYS & ELECTRONICS INDIA LTD. VS AAC (CT), (1996) 101 STC 297, 301 (MAD). IN VIEW OF THE ABOVE, WE SET ASIDE THE ORDER OF CIT (A) AND RESTORE THE SAME TO HIS FILE FOR FRESH ADJUDICATION ON MERITS OF THE CASE AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. 7. ORDER IS PRONOUNCED IN OPEN COURT. SD/- SD/- . . !' $# $# $# $# , !' (S. V. MEHROTRA) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( 0 0 0 0 ) )) ) DATED : 15 TH SEPTEMBER, 2011 12 $&34 $5 JD.(SR.P.S.) !/ 6 -$$ 7(8- COPY OF THE ORDER FORWARDED TO: 1 . +, / APPELLANT SHRI HARI HAR YADAV, CINEAM ROAD, DURGA PUR-01, BURDWAN, WEST BENGAL. 2 -.+, / RESPONDENT, ADDL. CIT, RANGE-2, DURGAPUR 3 . $/& ( )/ THE CIT(A), DURGAPUR 4. $/& / CIT, DURGAPUR 5 . $> -$& / DR, KOLKATA BENCHES, KOLKATA . -$/ TRUE COPY, !/&?/ BY ORDER, #4 /ASSTT. REGISTRAR .