Ita/179/2010 Of M/S Kale Khan Mohd. Haneef v. Commissioner Of Income Tax - Ii

29/4/2014. Shri A.P. Shrivastava, learned counsel for the appellant. Shri Sanjay Lal, learned counsel for the respondent. Calling in question tenability of an order passed by the Income Tax Appellate Tribunal, Jabalpur Bench, Jabalpur, in ITA No.135/Jbp/2007 vide order Annexure-A/1, dated 28.10.2009, this appeal has been filed. For the assessment year 2001-02, the assessee was assessed for income tax and certain deductions were rejected by the Assessing officer. Challenging the same, appeal was filed by the assessee before the Commissioner (Appeals) and the Commissioner (Appeals) partly allowed the appeal and deleted certain additions which were made by the Assessing officer. It is the case of the petitioner that challenging the order of the Commissioner (Appeals), appeal was filed before the Tribunal by the Revenue and in the meanwhile, as the business establishment of the petitioner in the quarters was closed and they were shifted to Bhopal, without proper notice to them and without hearing to them, the appeal has been decided ex-parte against the appellant by the Tribunal and the deletion granted by the Commissioner has been interfered with. Inter alia contending that the Income Tax Appellate Tribunal has allowed the appeal of the department without granting proper opportunity of hearing to the appellant, this appeal has been filed under Section 260-A of the Income Tax Act. Even though, Shri Sanjay Lal, learned counsel appearing for the respondent tried to argue and submit that in spite of service of notice, appellant did not appear and therefore, there is no error in the matter. But, the fact remains that certain orders adverse to the appellant have been passed by the Tribunal and prima facie, the material available on record does show that the proper service to the appellant was not affected. Even though, prima facie, material shows that the notices were issued to the appellant and it was served on him but the fact remains that due to appellant shifting from Jabalpur to Bhopal, appellant was not in a position to appear before the Tribunal and Tribunal without granting proper opportunity, proceeded in the matter ex-parte, which is according to us was not proper. Taking note of the aforesaid, this appeal is allowed. Impugned order Annexure-A/1 dated 28.10.2009 is quashed and the matter is remanded back to the Income Tax Appellate Tribunal, Jabalpur Bench, Jabalpur, to hear the appellant and thereafter, to proceed in accordance with law. Certified copy as per rules. (Rajendra Menon) Judge (Anil Sharma) Judge Parouha/-