Dayaram S.Yadav, Baroda vs Assessee
- CitationITA.No.738/Ahd/2011
Ratio decidendi
The rule this decision rests on
The Tribunal holds that where the first appellate authority has passed an ex-parte order without affording the assessee a due opportunity of being heard, the appellate order is liable to be set aside and the matter restored to that authority with a direction to decide it afresh on facts and law after giving the assessee a proper hearing. Because the question of opportunity of hearing is a preliminary, procedural defect, the Tribunal declines to examine the merits of the substantive issue (disallowance under section 40(a)(ia)) and leaves it open for the first appellate authority to decide on remand.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Dayaram S Yadav Prop: Yadav Transport IPCL Road, Ranoli, Baroda Appellant
Vs.
A.C.I.T. Circle-2(1), Baroda Respondent
PAN: AAEPY8198H
अपीलाथȸ कȧ ओर से /By Appellant : Shri M. K. Patel, A.R. ू×यथȸ कȧ ओर से/By Respondent : Shri Dinesh Singh, Sr. D.R. सुनवाई कȧ तारȣख/Date of Hearing : 05.01.2015 घोषणा कȧ तारȣख/Date of Pronouncement : 09.01.2015 I.T.A. No. 738/Ahd/2011 A.Y. 2005-06 (Dayaram S Yadav vs. ACIT) Page 2
ORDER
PER SHAILENDRA KUMAR YADAV, J.M:
This appeal has been filed by the assessee against the order of Commissioner of Income Tax (Appeals)-II, Baroda, dated 16.12.2010 for A.Y. 2005-06 on the following grounds:
"1. The Learned CIT(Appeals) erred in not giving proper opportunity to the appellant to represent the case.
2. The Learned CIT(Appeals) erred in passing the ex-
parte appellate order.
3. The Learned CIT(Appeals) erred in confirming disallowance of Rs.19,33,771/- u/s 40(a)(ia) of the Act."
2. At the outset of hearing, ld. Authorized Representative pointed out that CIT9A) has passed the order without providing due opportunity of hearing to the assessee. On other hand, ld. Departmental Representative contended that assessee had not appeared on the date of hearing, so, the order of CIT(A) be confirmed.
2.1 After going through the rival submissions and material on record, we find that CIT(A) has passed ex-parte order. So, in the interest of justice, we set aside the order of CIT(A) and restore the matter to him with direction to decide the same as per fact and law after providing due opportunity of being heard to the assessee. At the same time, apathy towards lower I.T.A. No. 738/Ahd/2011 A.Y. 2005-06 (Dayaram S Yadav vs. ACIT) Page 3
authority cannot be encouraged. So, assessee is directed to pay Rs. 5,000/- in the legal aid of Hon'ble Gujarat High Court. Since, we are restoring the matter on preliminary issue of opportunity of hearing, so we are refraining to comment on the merit of the issue at hand.
3. In the result, appeal filed by the assessee is allowed for statistical purpose.
Pronounced in the open Court on this the 09th day of January, 2015.
Sd/- Sd/- (N. S. SAINI) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER True Copy S.K.SINHA
आदे श कȧ ूितिलǒप अमेǒषत / Copy of Order Forwarded to:-
1. राजःव / Revenue
2. आवेदक / Assessee
3. संबंिधत आयकर आयुƠ / Concerned CIT
4. आयकर आयुƠ- अपील / CIT (A)
5. ǒवभागीय ूितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR, ITAT, Ahmedabad
6. गाड[ फाइल / Guard file.
By order/आदे श से,
उप/सहायक पंजीकार आयकर अपीलीय अिधकरण, अहमदाबाद ।
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