TMI Blog2008 (2) TMI 532X X X X Extracts X X X X X X X X Extracts X X X X ..... taken in ITA No. 263/Asr/2007: "1. That the learned CIT(A) is not justified in holding that the excise refund received by assessee amounting to Rs. 11,33,446 is not a revenue receipt but merely a debt from Central Excise Department. 2. That the learned CIT(A) is not justified in holding that excise refund received by assessee amounting to Rs. 11,33,446 is not an income at all and that the question of it being 'derived from' industrial undertaking or not, does not arise. 3. That the learned CIT(A) is not justified in making an observation that excise charged by assessee from its customers and forming part of total turnover is 'derived from' industrial undertaking. 4. That the learned CIT(A) is not justified in deleting the addition o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised: "(i) That the learned CIT(A) has erred on facts and in law by not affording an opportunity of being heard to the AO by not issuing ITNS-51 to the AO before fixing the case for hearing, thus passing an order in violation of the provisions of s. 250(2) of the IT Act, 1961 and the principles of natural justice thereby rendering the order void ab initio. (ii) That the learned CIT(A) has erred on facts and in law by not issuing notice to the AO regarding date, time and place of fixation of the case of hearing under s. 250(1) of the IT Act, 1961." 5. Apropos the admission of the additional grounds raised in ITA No. 263/Asr/2007, the contention of the learned Departmental Representative is that these grounds are legal, going to the ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g non-affording of opportunity to the AO by the learned CIT(A) at the time of hearing of the appeal. The learned counsel for the assessee has submitted that ITNS-37, dt. 11th Dec., 2006 was served on the assessee through the AO himself. According to the learned counsel for the assessee, this clearly shows that the learned CIT(A) got ITNS-37 served on the assessee through the AO and that thus, it is incorrect to say that the AO was not aware of the pendency of the appeal before the learned CIT(A). In support of his contention, the learned counsel for the assessee has sought to place reliance on the decision of the Hon'ble Supreme Court in the case of G. Sarana vs. University of Lucknow Ors. 1976 AIR 2428 SC, wherein, it has been held, inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Department and it does not concern the assessee. It has also been contended that ITNS-37, which is the form of a notice to be issued and served on the assessee by the office of the learned CIT(A) with regard to the opportunity of hearing, was got served by the office of the learned CIT(A) through the AO on the assessee and that therefore, the AO definitely was aware of the pendency of the appeal before the learned CIT(A). 10. The first contention of the assessee, in our considered opinion, does not carry any force. As such, s. 250 does not prescribe any form of notice to the AO. ITNS-51 is a form undisputedly prepared by the Department in pursuance to the provisions of s. 250(1) of the Act. It is this form which provides notice to the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act embody the fundamental rules of natural justice so as to ensure that the appellate authority acts honestly, in good faith, with a sense of responsibility and in consonance with its own rules. When the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially. They must deal with the question referred to them without bias, and they must give to each of the parties the opportunity of adequately presenting the case made. In this case, the Department has been able to successfully show that no opportunity of hearing was afforded to the AO before deciding the appeals. Therefore, the grievance of the Department in this regard is justified. G. Sarana has no application to the present case. There is no que ..... X X X X Extracts X X X X X X X X Extracts X X X X
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