State Bank Of Bikaner & Jaipur, New Delhi vs Assessee

State Bank of Bikaner & Jaipur, Income Tax Officer

New Delhi House, vs. TDS Ward 51(3),

27, Barakhamba road, Delhi - 110 0092

New Delhi - 110 001

(APPELLANT) (RESPONDENT)

Assessee by : Sh. Shanti Prashad, CA Department by : Sh. B.R.R. Kumar, Sr. DR

Date of Hearing: 18.05.2015

Date of Order : 29.05.2015

ORDER

PER A.T. VARKEY : JM

This appeal filed by the Assessee, arises out of the order passed by the Ld. CIT(A)-XXX, New Delhi dated 6.7.2012 pertaining to assessment year 2009-10 and raised the following grounds:-

1) That the learned CIT (Appeals) has erred in passing the order uls 250 of the Act in the instant case without allowing any

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opportunity of hearing to the appellat assessee. That the learned CIT (Appeals) has erred in disposing off the appeal without giving any notice of hearing to the assessee and without hearing the assessee.

2) That the learned CIT (Appeals) has erred in holding that the appeal filed by the assessee was "infructuous and redundant".

3) That the learned CIT (Appeals) having found that the Assessing

Officer (TDS) had not applied his mind before passing the order uls

201(1)/201(1A) and having further found that the order so passed by him was not a speaking order, ought to have cancelled the order

passed by the Assessing Officer.

4) That the learned CIT (Appeals) has erred in not disposing off the specific grounds of appeal raised by the assessee in the form No.35 filed before him.

5) That the learned CIT (Appeals) ought to have cancelled the levy of interest amounting to Rs.15,06,0801- levied by the Assessing Officer uls 201(1A) of the Act.

6) That the appellant craves the right to amend, append, delete any or all grounds of appeal.

2. Briefly stated the facts of the case are that the assessee has filed e- TDS statement and correction statement(s) if any. The TDS statement was analyzed by AO on the basis of entries reported by the deductor (assessee), and the information available as per bank challan details which revealed defaults i.e. non payment of TDS amount deducted, the non/low deduction of TDS at prescribed rates and late payment of taxes. Accordingly, a show cause notice under section 201(1A) of the Income Tax Act, 1961 2 ITA NO.4936/Del/2012

(hereinafter "the Act") was issued to the assessee alongwith a detailed justification indicating entry reasons of the defaults noticed in the case of the deductor (assessee). Since according to AO, the defaults, found were factual and based on entries reported in the TDS statement, deductor was advised to file 'Correction Statement' to rectify data entry errors, if any, in the TDS statement within 15 days of receipt of such show cause notice. The net defaults noticed after the expiry of stipulated period of filing the 'correction statements' are as per the justification report which forms Annexure 'A' of his order. And in view of the defaults as per Annexure 'A', the deductor (assesses) was declared to be an 'assessee in default' and the AO assessed accordingly. The deductor (assessee) was directed to pay the total tax liability of Rs. 15,06,080 vide order dated 28.3.2011 passed u/s. 201(1)/201(1A) of the Act.

3. Against the aforesaid order of the Assessing Officer, assessee appealed before the Ld. CIT(A), who vide his order dated 6.7.2012 has allowed the appeal for statistical purposes with some directions.

4. Aggrieved by the said order of the Ld. CIT(A), now the Assessee is in appeal before us.

5. The Ld. AR at the outset pointed to the first page of the impugned order and drew our attention to the fact that from a perusal of the said page, it can be noted that the last date of hearing has been kept as blank, meaning no date was fixed by the Ld. CIT(A) for hearing and the assessee is not in receipt of any notice. And if notice was issued then date ought to have been mentioned by the Ld. CIT(A). So according to him, it can safely be inferred that neither notice was issued nor any date of hearing was fixed by the Ld. CIT(A), so nobody could represent the assessee before the Ld. CIT(A), which is against natural justice.

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6. On the other hand, Ld. DR has relied upon the order of the AO.

6.1 We find that in para 3 of the impugned order the Ld. CIT(A), states "when the AO(TDS) is unable to apply his mind or have no access to NSDL site, what the CIT(A) can do in such type of appeals? To my mind, these appeals appear infructuous and redundant."

6.2 In our opinion, order passed without hearing the assessee, is bad in law, we find force in the contention of the assessee that without specifying a date of hearing and informing the same by issue of notice, vitiates the impugned order. So we set aside the impugned order and direct the Ld. CIT(A) to pass a speaking order on the question of law, fact and mixed question of law or fact, if raised by the assessee before him. Needless to say that the assessee shall be given adequate opportunity of being heard before he passes the de novo appellate order.

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

Order pronounced in the Open Court on 29-5-2015.

Sd/- sd/-

[S.V. MEHROTRA] [A.T. VARKEY] ACCOUNTANT MEMBER JUDICIAL MEMBER

Date: 29.5.2015

Copy forwarded to: -

1. Appellant -

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2. Respondent - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY

By Order,

Assistant Registrar, ITAT, Delhi Benches

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