TMI Blog2010 (9) TMI 1231X X X X Extracts X X X X X X X X Extracts X X X X ..... second appeal before the Hon'ble ITAT Lucknow Bench Lucknow on 22-7-2009. 2. That the appellant is assessed to tax within the jurisdiction of the ITO Range II Lucknow at PAN : AAHPO7013J and resides at 28, Park Road Lucknow. However, presently the business activities are carried out at site office 297D Salvation Army Road, Civil Lines, Bareilly (UP.) mentioned in Form No.36 before this Hon'ble Court. 3. That the counsel of the appellant Mr. Surendra Kohli Advocate (Tax Consultant) is based at Lucknow and his office address is 58, Hazratganj Lucknow. 4. That the case was fixed on 17-8-2009 before this SMC Bench and notice of hearing served at the Bareilly address fixing the case on 17-8-2009. 5. That there was a tragedy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence Day. Sunday 16.8.2009 Closed Holiday. 8. Subsequently my counsel informed after my arrival at Bareilly that immediately on receipt of notice the counsel reached the IT AT to be informed that decision has been taken ex-parte and advised for steps to be taken in the matter and hence this miscellaneous petition for sympathetic consideration and restoration of appeal petition. 9. That the appellant is a law abiding citizen and it is just unfortunate that on account of tragic and compelling circumstances, the appellant was prevented from a reasonable and sufficient cause for making an appearance on the date of hearing and plead mercy. 10. That the requisite fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contents of the aforesaid application and requested to recall the ex parte order by sating that the assessee was prevented by reasonable cause for his non-appearance on 17.8.2009. 4. In his rival submissions, the ld.D.R., although opposed the recalling of ex parte order, but could not controvert the aforesaid contention of the assessee. 5. After considering the submissions of both the parties, we find that the explanation of the assessee is plausible and are of the opinion that the assessee was prevented by reasonable cause to plead his case on 17.8.2009. We,therefore, recall the ex parte order dated 17.8.2009 and since both the parties agreed to argue the appeal on merit, the appeal is fixed for hearing and after hearing the parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not taken up for the reasons mentioned in ground no 2 above. 6. That ex-parte Appellate Order served on 26-5-2009 after the appellant came to know for the first time from the AO and applied for the same. 7. That even on merits the learned CIT(A) failed to appreciate that in the absence of ownership right in the premises, how come income assessed as rental receipt under Income under the Head House Property . 8. That the Appellate Order deserved to be set-aside or such other relief be granted as may be deemed fit and appropriate. 8. The facts of the case, in brief, are that the assessee did not file his return of income. The income was earned as partner in the firm M/s. New Warehouse Carriers, Lucknow. The AO issued the notice u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the AO and submitted that since the assessee did not appear before the ld.CIT(A), therefore, the appeal was rightly dismissed for non-compliance. 13. We have considered the submissions of both the parties and gone through the material available on the record. In the instant case, although the ld. CIT(A) has stated that the case was fixed eight times for hearing, but nowhere it is stated that the assessee did not comply the notices. It is also noticed that the ld.CIT(A) had not decided the appeal on merit, but dismissed the same in limine. We, therefore, deem it appropriate to set aside the order of the ld.CIT(A) and remand the case to be decided on merit in accordance with law, after providing due and reasonable opportunity of being ..... X X X X Extracts X X X X X X X X Extracts X X X X
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