Mansarover Builder Pvt. Ltd.,, New ... vs Assessee

PER CHANDRAMOHAN GARG, J.M.

This appeal has been preferred by the assessee against the order of the

CIT(A)-IX, New Delhi dated 28.09.2012 in Appeal No. 88/11-12 for AY 2009-

10.

2. At the very outset, ld. AR submitted that ground no. 1 of the assessee

may kindly be taken up first for adjudication as this ground pertains to violation

of principles of natural justice by the CIT(A). Ld. DR submitted that the

department has no objection if ground no. 1 of the assessee is taken up in the

beginning. Ground no. 1 of the assessee reads as under:-

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ITA 5746/Del/2012 Asstt.Year: 2009-10

" 1. Ld. CIT(A) has erred both on facts and in law in not affording a reasonable opportunity of being heard to the appellant company and passing the appellate order ex parte which is contrary to the established principles of natural justice."

3. Apropos ground no.1, we have heard both the sides and carefully perused

the relevant material placed on record. Ld. AR submitted the written

synopsis/arguments and submitted that the CIT(A) has not granted adequate

opportunity of being heard for the assessee during first appellate proceedings.

Ld. AR vehemently contended that notice for the date of hearing on 12.7.2012

and 1.8.2012 were received on 17.7.2012 and 6.8.2012 respectively after

passing of date of hearing. The AR further contended that in compliance to

notice dated 10.9.2012 being the first date of hearing, a request for adjournment

was made before the CIT(A) and the case was adjourned only for a week fixing

the date of hearing to 26.9.2012. Ld. AR has further drawn our attention

towards paper book page no. 6 and submitted that the reason for the application

of adjournment was that son of Mr. K.J.S. Mehta, FCA who was representing

the appeal before the CIT(A) had been admitted in Max Hospital, Saket in

connection with a serious illness but the CIT(A) rejected the application and

proceeded to adjudicate the appeal ex parte without affording due opportunity

of hearing for the assessee. Ld. AR submitted that the appeal of the assessee

was adjudicated following the principles of natural justice, therefore, the case

may be remitted back to the file of CIT(A) for fresh adjudication as per

provisions of the Act.

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4. Ld. DR fairly accepted that if it is found just and proper to restore the first

appeal to the file of CIT(A), then the department has no serious objection to

that.

5. In view of above submissions of both the sides and careful perusal of the

adjournment application available on page no.6, we note that the assessee filed

an application for adjournment on 26.9.2012 but the same was rejected by the

CIT(A) and appeal was decided ex parte without affording due opportunity of

hearing for the assessee. This act of the CIT(A) is clearly violative of principles

of natural justice and only due to this reason, impugned order dated 28.9.2012 is

not sustainable and we set aside the same. The first appeal is restored back to

the file of CIT(A) for fresh adjudication on all issues after affording due

opportunity of hearing for the assessee. The assessee is directed to cooperate

with the proceedings before the first appellate authority. Accordingly, ground

no. 1 of the assessee is allowed.

6. Since by earlier part of this order, we have restored the first appeal to the

file of CIT(A) for a fresh adjudication, therefore, ground no. 2 to 8 of the

assessee do not survive for adjudication on merits and we dismiss the same.

7. In the result, the appeal of the assessee is allowed as indicated above and

may be treated as allowed for statistical purposes.

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Order pronounced in the open court on 14.1.2015.

Sd/- Sd/-

(G.D. AGRAWAL) (CHANDRAMOHAN GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER

DT. 14th January, 2015 'GS'

Copy forwarded to:-

1. Appellant 2. Respondent 3. C.I.T.(A) 4. C.I.T. 5. DR By Order

Asstt. Registrar

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