M/S Dugdh Utpadak Sahkari Sangh Ltd., ... vs Assessee

M/s Dugdh Utpadak Sahkari Sangh Ltd. v. ACIT Ayodhya Road Circle Faizabad Faizabad TAN/PAN:AAAAD2255P (Appellant) (Respondent)

Appellant by: Shri. P. K. Kapoor, C.A. Respondent by: Shri. Punit Kumar, D.R. Date of hearing: 30 03 2015 Date of pronouncement: 16 04 2015

ORDER

PER SUNIL KUMAR YADAV:

This appeal is preferred by the assessee against the order of the ld. CIT(A), inter alia, on the following grounds:-

1. BECAUSE "CIT(A)" has erred in law and on facts in dismissing the appeal, by passing an ex-parte order dated 29.10.2014 without affording due and effective opportunity of being heard to the assessee.

2. BECAUSE the adjournment of hearing sought by the "appellant" on the ground that the appeal in set-aside proceedings relating to order passed under section 143(3) in quantum of assessment be heard together was after due discussion with "CIT(A)"

and as such, his observation to the effect that "there is no requirement to link the set aside appeal with the impugned appeal as it involved a separate issue relating to additions made under section 40(a) (ia) of the Act" is not correct on facts of the case. :-2-:

3. BECAUSE owing to the ex-parte order passed by "CIT(A)" the assessee could not get proper opportunity of being heard and for this reason alone, the impugned order passed by "CIT(A)" being against principles of natural justice, deserves to be set aside and matter be restored to "CIT(A)" for being decided afresh on merits after providing due opportunity to the assessee.

4. BECAUSE the additions aggregating Rs.6,70,191/- made by the "Assessing Officer" under the following heads:-

(i) Hiring charges for tanker =Rs.4,61,178/-

(ii) Prop, charges for tanker =Rs. 2,09,013/-

Allegedly for non-deduction of tax at source were beyond the scope of proceedings under section 154 of the Act, the same ought to have been deleted by "CIT(A)".

5. Without prejudice to ground no.4 hereinfore, the assessee had made due deduction of TDS on hiring charges for tanker and prop, charges for tanker and the amount so deducted were deposited as per provisions contained in Chapter-XVIIB of the Act, the Assessing Officer was not justified in making the addition and as such consequently, "CIT(A)" should have deleted the same.

6. BECAUSE the order appealed against is contrary to the facts, law and principles of natural justice.

2. This appeal is filed late by 24 days. The delay was explained by the assessee by filing an affidavit and on a careful perusal of the affidavit, we find that the assessee has explained the delay in filing of the appeal. We, therefore, condone the delay in filing of the appeal and admit the same for hearing.

3. During the course of hearing, the ld. counsel for the assessee has invited our attention to the order of the ld. CIT(A) with the submission that the hearing of the appeal was fixed on few dates, on which adjournment :-3-:

was sought. The assessee's counsel, Shri. P. K. Kapoor, C.A. has appeared first time on 10.10.2014 and requested for adjournment. Accordingly, the adjournment was granted for 29.10.2014 and assessee's counsel was advised by the ld. CIT(A) that this appeal may be clubbed with the other appeal pending before him for adjudication pursuant to the order of the Tribunal in regular assessment. Accordingly, assessee has moved an application to the ld. CIT(A) with a request to consolidate both the appeals, but the ld. CIT(A), instead of consolidating both the appeals, has rejected the request for adjournment and disposed of the appeal of the assessee on the same day without affording proper opportunity of being heard to the assessee. In support of his contention, the ld. counsel for the assessee has invited our attention to the letter written by the assessee on 29.10.2014 for consolidation of the appeals pending before the ld. CIT(A). The ld. counsel for the assessee has further contended that since the ld. CIT(A) has not afforded proper opportunity of being heard to the assessee, the order of the ld. CIT(A) may be set aside and the matter may be remanded back to him for re-adjudication of the appeal on merit after affording an opportunity of being heard to the assessee.

4. The ld. D.R. has simply placed reliance upon the order of the ld. CIT(A).

5. Having carefully examined the order of the ld. CIT(A) and the application filed by the assessee before the ld. CIT(A) in the light of the rival submissions, we find that the ld. counsel for the assessee, Shri. P. K. Kapoor appeared first time before the ld. CIT(A) on 10.10.2014 and sought adjournment. Accordingly, the adjournment was granted for 29.10.2014. On 29.10.2014, the ld. counsel for the assessee has moved an application for consolidation of the appeals pending before the ld. CIT(A) with other appeal, but the ld. CIT(A), instead of consolidating both the appeals pending before him or rejecting the request of the assessee for :-4-:

consolidation of the appeals, has disposed of the appeal of the assessee, which means that the ld. CIT(A) was in haste to dispose of the appeal without affording opportunity of being heard to the assessee. This approach of the ld. CIT(A) cannot be appreciated. We accordingly set aside the order of the ld. CIT(A) and restore the matter to his file with a direction to re-adjudicate the appeal afresh after affording an opportunity of being heard to the assessee. The assessee is also directed to extend all sorts of co-operation to the ld. CIT(A) in disposal of the appeal.

6. In the result, appeal of the assessee is allowed for statistical purposes.

Order was pronounced in the open court on the date mentioned on the captioned page.

Sd/- Sd/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER

DATED:16th April, 2015 JJ:2703

Copy forwarded to: 1. Appellant 2. Respondent 3. CIT(A) 4. CIT 5. DR Assistant Registrar