Rajkamal Associates Ltd., New Delhi vs Assessee

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

CIT(A)- XVIII, New Delhi dated 8.11.2012 in Appeal No.410/11-12 for AY

2004-05.

2. We have heard arguments of both the sides and carefully perused the

relevant material placed on record. At the outset, we take up ground no. 1 and 2

of the assessee which read as under:-

"1. Order passed by the ld. CIT(A) u/s 143(3)/147 of the Income Tax Act, 1961 is arbitrary and bad in law and on facts and circumstances of the case.

1 ITA No.704/Del/2013 Asstt.Year: 2004-05 2. The ld. CIT(A)-XVIII, New Delhi did not afford reasonable opportunity to the appellant to represent its case which is against the law of natural justice."

3. Apropos aforementioned grounds, the ld. Counsel of the assessee

submitted that the CIT(A) did not afford reasonable opportunity of hearing to

the appellant assessee to represent its case during first appellate proceedings

which is against the principles of natural justice. Ld. Counsel has further drawn

our attention towards operative para 3 at page 2 of the impugned order and

submitted that on 25.10.2012, the assessee filed an application requesting for

adjournment to the first week of November, 2012 and the case was adjourned to

6.11.2012 but on the said date, the assessee and its representative could not

attend the proceedings due to some unavoidable circumstances. Ld. Counsel

further submitted that the assessee and its representative remained absent due to

reasons beyond control under a bona fide belief that a reasonable opportunity of

hearing would be afforded to the assessee. Ld. Counsel vehemently contended

that without prejudice to the above submissions and contentions if, for the sake

of argument, it may be presumed that the assessee and its representative

remained absent during the first appellate proceeding, then also the first

appellate authority i.e. CIT(A) is duty bound to adjudicate and address all the

grounds of appeal raised by the assessee before the first appellate authority but

the CIT(A) has dismissed the appeal simply observing that it is apparent that the

assessee is not interested in pursuing the appeal which is not a legal and

justified approach of the first appellate authority.

2 ITA No.704/Del/2013 Asstt.Year: 2004-05

4. Replying to the above, ld. DR submitted that if assessee is neither

appearing nor filing any application for adjournment on fixed date of hearing

i.e. 6.11.2012, then the first appellate authority has no alternative to dismiss the

appeal in absence of proper persuasion. However, ld. DR fairly accepted that if

it is found just and proper, then the case may be restored to the file of CIT(A)

for a fresh adjudication and department has no serious objection in this regard.

5. On careful consideration of above submissions of both the sides and

careful perusal of relevant material placed on record, from bare reading of the

operative para 3 at page 2 of the impugned order, we observe that the CIT(A)

has dismissed the appeal with this conclusion that the assessee is not interested

in pursuing the appeal without expressing and adjudicating any views on the

grounds raised by the assessee in its first appeal. This is not a proper and

justified approach as if assessee remains absent despite service of notice, then

the CIT(A) may proceed to decide the appeal on merits addressing all the

grounds raised by the assessee on the basis of material available on appeal

record but the appeal cannot be dismissed summarily by passing a cryptic order.

Therefore, we are of the considered opinion that the CIT(A) ought to have

decided and adjudicated all the issues and grounds raised by the assessee and,

therefore, the impugned order of the CIT(A) is not sustainable and we set aside

the same by restoring the first appeal to the file of the CIT(A) for fresh

adjudication on merits after affording due opportunity of hearing for the

3 ITA No.704/Del/2013 Asstt.Year: 2004-05

assessee. Needless to say that the assessee shall cooperate during fresh

proceedings before the CIT(A).

6. In the result, ground no. 1 and 2 of the assessee are allowed in the manner

as indicated above. Since we have restored first appeal to the file of CIT(A) for

fresh adjudication, therefore, other grounds of the assessee do not require

adjudication on merits and we dismiss the same as being infructuous.

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

Order pronounced in the open court on 19.02.2015.

Sd/- Sd/-

(R.S. SYAL) (CHANDRAMOHAN GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER

DT. 19th February, 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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