Allahabad H.C : Whether, on the facts and in the circumstances of the case, the Tribunal was legally correct in remitting the matter to the CIT(A) for deciding the appeal afresh after giving the assessee an opportunity of being heard ?

High Court Of Allahabad

CIT vs. Dhanaura Oil Industries

Section 254

Asst. Year 1971-72

M.C. Agarwal & R.K. Agarwal, JJ.

IT Ref. No. 42 of 1982

24th September, 1999

Counsel Appeared : Prakash Krishna, for the Revenue : None, for the Assessee

JUDGMENT

BY THE COURT :

At the instance of the Commissioner, the Tribunal, Delhi Bench “B”, Delhi, has referred the following question stated to be of law and to arise out of its order dt. 10th Dec., 1980, passed in ITA No. 3279 (Del) of 1978-79 for the asst. yr. 1972-73 : “Whether, on the facts and in the circumstances of the case, the Tribunal was legally correct in remitting the matter to the CIT(A) for deciding the appeal afresh after giving the assessee an opportunity of being heard ?” We have heard Sri Prakash Krishna, learned standing counsel for the CIT. No one has appeared on behalf of the respondent. The Tribunal disposed of the assessee’s appeal with the following observations : “4. The assessee has come up in second appeal as regards the quantum of assessment. The appeal was heard ex parte as assessee failed to appear at the hearing. Learned CIT(A) firstly, pointed out that the grounds of appeal as filed before him had been drafted in a faulty and confused manner. Next, the CIT took the view that as the assessee had, on receipt of a draft assessment order from the ITO under s. 144B(1), failed to submit objections within the time allowed by law and that as consequently, the assessment in question had been finalised under s. 144B(3), the assessee could not challenge the said assessment by way of appeal. Further, the CIT mentioned ‘even otherwise the assessee has not raised any concrete argument nor furnished any material to show how and why the total income computed by the ITO is not correct or that the addition made by him is not genuine. ‘We are of the view that the failure on the assessee’s part to raise objections against the draft assessment as aforesaid, does not curtail the assessee’s right of appeal as available under s. 246(1) or (2) of the IT Act. That being the position we remit the matter to the CIT(A) for fresh decision according to law. We make it clear that by the present order, we are not giving any direction to the learned Commissioner so far s the question of production of any additional evidentiary material before him is concerned. The assessee should, however, be given the opportunity of being heard before deciding the appeal afresh. In case it seeks to produce any additional evidence or to raise any additional ground of appeal, such issues may be disposed of one merit accounting to law.” The question as referred by the Tribunal does not project any controversy. The CIT having taken the view that the assessee had no right of appeal and the Tribunal having upset that view, its order setting aside the appellate order and remanding the appeal to the CIT(A) for fresh disposal was proper. In any case that view is not challenged in this reference. Further, the case was remanded as far back as on 10th Dec., 1980, and the proceedings must have been concluded. For the above reasons, we answer the aforesaid question in the affirmative, i.e., against the Revenue and in favour of the respondent.

[Citation : 248 ITR 445]

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