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2012 (7) TMI 693 - AT - Income TaxNon remittance of TDS to Government account - Demand raised u/s 201(1) & interest u/s 201(1A) - survey u/s. 133A - AO issued the notice dated 21.12.2011 and claimed that the same was served on the assessee on the same day whereas claim of the assessee is that the said notice was received on 29.12.201 - Held that:- In the copy of the said notice, it is mentioned that “received on 29.12.2011”, however nothing is brought on record that in fact the said notice was received on 29.12.2011 because no other independent document like postal envelope or copy of the acknowledgement was produced before us to substantiate that claim. We therefore, in the absence of proper evidence, are unable to conclude as to whether the said notice was received by the assessee on 21.12.2011 as claimed by the department or on 29.12.2011 as claimed by the assessee. Letter of adjournment by assessee - Held that:- As assessee vide letter dated 19.12.2011 written to the AO sought an adjournment and requested to adjourn the case to some time after 05.01.2012, however nothing is brought on record as to whether the said request was rejected or accepted by the AO. It is well settled that nobody should be condemned unheard as per the maxim “audi alteram partem. Reasonable time for opportunity of being heard was required to be given to the assessee as the AO decided the issue in haste and the time allowed to the assessee was not sufficient, particularly when an adjournment was sought by the ld. counsel for the assessee for 05.01.2012 - the orders u/s. 201(1) & 201(1A) have been passed on 30.12.2011, even when the present case was not a time barring case where orders were to be passed within a short period - thus, it is advisable set aside the impugned order and remand the same to the file of AO for fresh adjudication in accordance with law, after providing due and reasonable opportunity of being heard to the assessee - in favour of assessee for statistical purposes.
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