Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2018 (10) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (10) TMI 1178 - AT - Income TaxValidity of order of CIT(A) in dismissing the appeal - Absence of proof of service of notice of hearing on the assessee - Denial of natural justice - Disallowance of the 2% of Total expenses - dismissing the appeal of the Assessee in limine for non-prosecution of appeal - Held that:- There is nothing in the subsequent conduct of the assessee, after the assessee received the impugned order dated 29.12.2017 of Ld. CIT(A), to validate the presumption of Ld. CIT(A) that the assessee did not wish to pursue the appeal. The order of Ld. CIT(A) does not make any mention of actual service of notices of hearing on the assessee; and that the DR failed to bring any evidence for our consideration to prove actual service of notices of hearing on the assessee. In the absence of proof of service of notice of hearing on the assessee, requirements U/s 250(1) and (2) in procedure in appeal prescribed U/s 250 of I.T. Act cannot be said to have been fulfilled. Unless the hearing notice is served on the assessee, the assessee’s right to be heard at the hearing cannot be exercised by the Assessee. Commissioner (Appeals) is duty bound to provide reasonable opportunity of being heard to the assessee. Valid service of notice of hearing is part of that duty. On cumulative consideration of these facts and circumstances, and the legal position, the presumption of Ld. CIT(A), that the assessee did not wish to pursue the appeal, stands demolished and the impugned order of Ld. CIT(A) based on this presumption has no legs to stand. In any case, when the requirement U/s 250(1) and (2) of I.T. Act are not complied with at the end of Ld. CIT(A), the appellate order passed U/s 250(6) of I.T. Act by Ld. CIT(A) suffers from infirmity and cannot be upheld. CIT(A) erred in dismissing the appeal of the Assessee in limine for non-prosecution of appeal by assessee. We set aside the impugned order of the Ld. CIT(A) and we direct the Ld. CIT(A) to pass denovo order as per law, in accordance with Sections 250 and 251 - Appeal of the Assessee is treated as partly allowed for statistical purposes.
|