Sarvjeet Singh Lamba, Lucknow vs Assessee

Shri. Sarvjeet Singh Lamba v. Income Tax Officer 508/66, Hata Baba Dayal Singh Range II(3) Rai Behari Lal Road Lucknow New Hyderabad, Lucknow TAN/PAN:AAXPL7615H (Appellant) (Respondent)

Appellant by: Shri. Abhinav Mehrotra, Advocate Respondent by: Shri. Punit Kumar, D.R. Date of hearing: 17 03 2015 Date of pronouncement: 26 03 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. That the Learned CIT(A) erred in law as well as on facts in confirming the assessment order which is contrary to law, facts and circumstances of the case without going into the merits of the case.

2. That the authorities below failed to appreciate that the appellant is a 'Kachha Artia' and as a matter of fact the business was on very petty scale read with the situation that the appellant could hardly make his both ends meet and had to resort to take loan from bank and thereto became a defaulter.

3. That the appellant was prevented from a reasonable and sufficient cause from making an appearance due to non service of notices, wrong advice and being bed ridden on account of :-2-:

mental depression and ailment.

4. That quite often notices of hearings issued by AO/CIT(A) since incomplete and short use of "RBL Road" the notices were re-

directed to Rae Bareli Road instead of Rai Behari Lal Road resulting in non-compliance.

5. That the Learned CIT(A) wrongly confirmed that assessment order passed u/s 143(3) and ought to have been passed u/s 144 being an ex-parte order and thus both the assessment / appellate order are illegal, arbitrary and illogical and thus cannot be deemed to be 'Best Judgment' and deserves to be quashed in view of the peculiar facts and circumstances of the case.

6. That the action of the CIT(A) in confirming the ex-parte order passed by the AO u/s 143(3) instead of u/s 144 is basically wrong and uncalled far and both decisions are thus illegal.

2. During the course of hearing, the ld. counsel for the assessee has argued that notice under section 143(2) of the Income-tax Act, 1961 (hereinafter called in short "the Act") was never served upon the assessee, therefore, the assessment framed without service of notice is not sustainable in the eyes of law. He has also argued that notice of hearing was not received from the office of the ld. CIT(A) and the ld. CIT(A) has adjudicated the appeal ex-parte without affording opportunity of being heard to the assessee.

3. The ld. D.R. has invited our attention to the assessment order with the submission that the notice under section 143(2) of the Act was issued through speed post, therefore, the contention of the ld. counsel for the assessee is not proper that notice under section 143(2) of the Act was not served upon the assessee.

4. Having carefully examined the orders of the lower authorities in the light of the rival submissions, we find that with respect to service of notice :-3-:

under section 143(2) of the Act, the Assessing Officer has recorded in his order that notice was issued through speed post, but said notice was received back un-served by the postal authorities. It is not clear from the assessment order whether notice under section 143(2) of the Act was served upon the assessee or not. But in any case, neither a specific ground has been raised before us nor any affidavit in this regard has been filed, as the dispute was raised with regard to the service of notice under section 143(2) of the Act. We have also carefully examined the order of the ld. CIT(A) and we find that this issue was not adjudicated by the ld. CIT(A). Moreover, the ld. CIT(A) has disposed of the appeal ex-parte against the assessee. We are, therefore, of the view that in the interest of justice, the issue of service of notice under section 143(2) of the Act requires to be adjudicated by the ld. CIT(A). Since the ld. CIT(A) has decided the appeal ex-parte without affording opportunity of being heard to the assessee, we set aside his order and restore the matter to his file with a direction to adjudicate the appeal on merit after affording opportunity of being heard to the assessee within a period of three months from the date of receipt of this order. We also direct the assessee to put his appearance before the ld. CIT(A) and extend all sort of co-operation in disposal of the appeal within the specified time. Accordingly appeal of the assessee stands allowed for statistical purposes.

5. In the result, appeal 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:26th March, 2015 JJ:1703 :-4-:

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