9911796707
TMI Blog2012 (12) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... rtunity of hearing by CIT (A) 1.1 The Id. Commissioner of Income Tax (Appeals) - Shimla, HP (hereafter the CIT (A)) erred in observing that appeal was fixed for hearing on 23.01.2006 and 07.02.2006 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te the settled law that service of notice is to be proved by the ITO and not by the appellant and thereby erred in holding that Nothing has been shown by the appellant to prove that notice u/s 148 and 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the net profit at Rs. 42,837 being 2% of sales, by relying upon the evidence collected ex-parte, which is not comparable, without confronting the same to the appellant and without providing any opportunity 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nge before the Hon'ble ITAT and there are high chance of deletion of addition. In view of these facts, it is requested "the case may be adjourned till the decision of the appeal by the Hon'ble Tribunal, and we undertake 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided adequate opportunity of being heard to the assessee before deciding the appeal . In our opinion, the Ld. CIT(A) should have afforded adequate opportunity of being heard to the assessee before deciding the appeal. In 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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