TMI Blog2018 (6) TMI 447X X X X Extracts X X X X X X X X Extracts X X X X ..... ly towards the fag end of the assessment proceedings, the AO issued notice u/s 131 to the Managing Director to produce the director of the share-applicants on 30.03.2015 knowing very well that assessment was getting time barred on the very next day i.e. 31.03.2015. When the Managing Director of assessee company appeared before the AO on 30.03.2015, he was told that assessment order has been already framed and passed i.e. on 30.03.2015 without giving an opportunity to the assessee to explain or rebut the materials collected by the AO behind the back of the assessee, which violates the Natural Justice of the assessee and so we hold that assessee did not get proper opportunity before the AO during assessment proceeding. Following decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. We note that the Ld. CIT(A) fixed the cases for hearing on 10.11.2016 by issuing notice on 26.10.2016. However, thereafter the Ld. CIT(A) issued notices on 19.12.2016 and 30.01.2017 but has not spelled out the dates on which hearing was fixed. However, since none appeared on behalf of the assessee, the Ld. CIT(A) was pleased to pass an ex-parte order dismissing the appeal of the assessee in limine. According to the Ld. AR, none of the notices were served upon the assessee and in the absence of receipt of notices, the Ld. AR of the assessee could not comply by attending for hearing of the appeal before the Ld. CIT(A). The learned AR submitted that the impugned order was passed thus without giving adequate opportunity of being heard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... personal appearances of the directors and submission of requisite documents, it was pointed out that 7 letters returned unserved. And in respect of companies which received the notice u/s 131, they did not comply with the notices on the fixed date of hearing. The ld AR pointed out that though the AO acknowledges the fact that 9 (nine) share subscribers had responded and forwarded certain papers through post or internal DAK on 27.03.2015, however the AO brushed aside the same on the reasoning that these documents do not inspire confidence because of some similarities, etc. Thereafter AO was of the opinion that since there is no compliance with the notices u/s 131 by directors of the share applicants companies and since the shares were issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntimation/information was given by the AO about the alleged non-compliance of the share applicants. According to the learned AR, before an adverse inference was drawn against the assessee, the AO ought to have provided the documents / information collected behind the back of the assessee, so that the assessee would have been able to explain the facts and circumstances or rebut the evidence collected by the AO. Thus according to the learned AR, there is a clear cut violation of natural justice committed by the AO and because of this act/omission on the part of AO, assessment has been completed without granting adequate opportunity to the assessee company during the assessment proceedings. According to the learned AR, the Hon ble Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of the asses-see. 5. The appeals are allowed. The order under challenge is set aside. The assessment order, that of the Commissioner (Appeals) and of the Tribunal are also set aside. The matter shall now be remanded to the assessing authority for fresh consideration, as aforestated. No order as to costs 5. According to ld. AR, since there was lack of opportunity to the assessee during assessment proceeding to set out its case before the AO, the plea of the learned AR is to restore the mater back to AO. This plea of the Ld. AR of the assessee has been vehemently opposed by the learned DR, who expressed his no-objection to restoring the appeal back to Ld. CIT(A) and not before AO. 6. Having heard the rival submission and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asi-judicial character only after the issuance of notice for assessment. This is so because AO is not a court (Dhakeswari Cotton Mills Ltd. 23 ITR 775). However it has to be kept in mind that though AO is at liberty to enquire even behind the back of the assessee, however if he is proposing to use it against the assessee or draw adverse inference against the assessee, then he is bound to furnish a copy of the same to the assessee and has to give opportunity to the assessee to meet it (explain or rebut). 8. The Hon ble Supreme Court in M.S.Gill vs The Chief Election Commission 1978 AIR SC 851 held The dichotomy between administrative and quasi-judicial function vis- vis the doctrine of natural justice is presumably obsolescent after Krai ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
