9911796707
TMI Blog2012 (12) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... .2006 and the Id. CIT (A) has not even stated that the notices fixing the hearing were served upon the appellant and even there is no mention of mode and manner of service of the notices. 1.2 The Id. CIT (A) failed to consider in true perspective the adjournment application, which was filed before hand. 1.3 The Id. CIT (A) failed to provide proper, adequate and sufficient opportunity of hearing to the appellant and erred in deciding the appeal ex-party. 2 Jurisdiction of ITO 2.1 The Id. CIT (A) failed to appreciate provisions of section 124 of the Income Tax Act, 1961 (hereafter the Act), and thereby further failed to appreciate that the Id. Income Tax Officer, Parwanoo, HP (hereafter the ITO) exceeded the jurisdiction in decidin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 143 (2) of the Act have not been properly served. 3.2 The Id. CTT (A) failed to appreciate that the assessment order does not say a single word about the issue of notice u/s 143(2) of the Act and much less service thereof. 3.3 The Id. CIT (A) failed to appreciate provisions of section 282 of the Act, 3.4 The Id. CIT (A) erred in upholding the service of notice u/s 148 and 143 (2) of the Act and failed to annul the assessment. 4 The Id. CIT (A) failed to decide the grounds of appeal inter alia pertaining to reopening of the assessment, as under: (1) the Id. ITO had no 'reason to believe' to initiate the assessment proceedings under section 147 of the Act, the proceedings were initiated on highly misconceived grounds, in the nature of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the appellant to rebut the same and therefore such evidence must be excluded from consideration, (3) That the appellant has manipulated the profits by suppressing the expenses (including the purchases) and also by inflating the expenses, and this is self-contradictory and particularly without specifying any such item, (4) That the wages paid are insufficient to engage ten totally skilled workers, whereas employment of totally skilled workers is not the requirement of law, (5) Without prejudice, non- exclusion of Rs. 2,20,553 being profit on sale of long term capital asset, from the profits of the business resulting in double taxation of the said amount, (6) Without prejudice, Rs. 19,51,957 is assessable as income from their sources. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to inform your honour of outcome of the appeal". 3. It is apparent from the above that the appellant is not interested in prosecuting the appeal till the decision of the Hon'ble Tribunal in earlier year. It is not practicable re-accept the request of the appellant as in most of the other cases also, the issues impending for adjudication before the Hon'ble tribunal. The appellant is supposed to make submissions on merits in support of the grounds raised in appeal. This has not been done. In view of these facts, the appeal is disposed of on the basis of the material available on record." 5. We have heard the rival submissions. Shri S.B. Garg, Ld. Counsel for the assessee submitted that the Ld. CIT(A) has decided the appeal of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Radhika Charan Banerjee Vs. Sambalpur Municipality, AIR (1979) Orissa 69, the Hon'ble Orissa High Court held that a right of appeal wherever conferred includes a right of being afforded an opportunity of being heard, irrespective of the language conferring such right . That is a part and parcel of the principle of natural just ice. The Hon'ble High Court further observed that where an authority is required to act in a quasi-judicial capacity, it is imperative to give the appellant an adequate opportunity of being heard before deciding the appeal. Thus, considering the entire facts of the present case, we think it proper to set aside the order of the Ld. CIT(A) in toto and restore the matter to his file with a direct ion to deci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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