Case Law Details

Case Name : ACIT Vs Kalinga Mining Corporation (ITAT Cuttack)
Appeal Number : ITA Nos. 389-392 & 465-467/CTK/2019
Date of Judgement/Order : 23/06/2022
Related Assessment Year : 2008-09

ACIT Vs Kalinga Mining Corporation (ITAT Cuttack)

We are not going into merits of the appeals. Only because an opportunity of hearing as prescribed u/s.250(1) of the Act has not been provided by the ld. CIT(A) to the AO and there is a clear violation of principle of natural justice in respect of opportunity to be given to the AO against whose orders the appeals have been preferred, we are of the view that the orders of ld. CIT(A) for all the impugned assessment years would have to be set aside on account of non-granting of opportunity of hearing to the AO as per the provisions of Section 250(1) of the Act and we do so. Consequently, the issues in these appeals are restored to the file of CIT(A) for readjudication after granting opportunity of hearing to both appellant/assessee and the AO against whose orders the appeals have been preferred before the CIT(A) and pass reasoned order in accordance with law.

FULL TEXT OF THE ORDER OF ITAT CUTTACK

These are the seven appeals filed by the revenue against the separate orders of the ld. CIT(A), Cuttack, dated 27.09.2019 & 30.08.2019 passed in respective appeals for the assessment years 2008­2009, 2009-2010, 2010-2011, 2011-2012, 2013-2014 & 2014-2015.

2. The grounds filed by the revenue being argumentative, the revenue was requested to file concise grounds of appeal and the same have been filed on 16.06.2022. At the time of hearing, it was submitted by the ld. CIT-DR that the reasons recorded for the purpose of reopening as ITA No.389-392 & 465-467/CTK/2019 extracted by the ld. CIT(A) in his order was at variance with the reasons recorded by the AO. At this point, ld. CIT-DR was questioned by the Bench as to whether notice had been issued for hearing by the ld. CIT(A) to the AO and whether the AO chose not to appear in respect of hearing before the ld. CIT(A). It was categorically stated by the ld. CIT-DR that notice of hearing has not been issued to the AO. He was requested to produce the records of the ld. CIT(A) in respect of said seven appeals on 23.06.2022. This direction was given on 01.06.2022. On 23.06.2022, ld. CIT-DR placed before us the records of the ld. CIT(A) in the seven impugned appeals. It is noticed that for the assessment years 2008-2009, 2010-2011, ld. CIT(A) has directed the issuance of ITNS-51 to the AO. However, the records do not show any notice having been issued and it has categorically been submitted by the ld. CIT-DR that no notice has been served on the AO. In respect of other assessment years though there is printed form of notice i.e. ITNS-51 to the AO in the ordersheet but the same are not signed by the CIT(A) and it has been categorically stated by the ld. CIT-DR that no notice of ITNS-51 has been served on the AO. The copies of the order sheet entries from the files of ld. CIT(A) in respect of ITNS-51 directed to be issued/not issued, are scanned and attached hereinbelow :-

CIT(A). It was categorically stated by the ld. CIT-DR that

In respect of other assessment years though

3. A copy of I.T.N.S 51 issued to the AO for A.Y.2014-2015 by the CIT(A) without his signature, is as under :-

A copy of I.T.N.S 51 issued to the AO for A.Y.2014-2015 by the

4. Further one of the unsigned copy of the I.T.N.S.51 issued to the AO by the CIT(A) for other assessment years, is reproduced below :-

Further one of the unsigned copy of the I.T.N.S.51 issued to the AO by the CIT(A)

5. When the appeal is filed before the CIT(A), the procedure in appeal is prescribed under Section 250 of the I.T.Act, 1961. Section 250(1) of the Act specifically uses the words “shall give notice” to the appellant/assessee and to the AO against whose order the appeal is preferred. Clearly non-issuance ITNS-51 is a procedural irregularity which has been committed at the stage of hearing of appeals by the CIT(A). As there is a procedural irregularity caused, the same needs to be rectified. For the purpose of this rectification, the issues in these appeals are required to be restored to the file of CIT(A) for readjduication after granting proper notice of hearing to the AO as also the appellant/assessee before him.

6. It was submitted by the ld. AR that the issues are covered by the decision of this Bench of the Tribunal in the case of M/s Tarini Minerals Pvt. Ltd., passed in ITA Nos.268,270&272/CTK/2020, order dated 02.05.2022. This was objected to by the ld. CIT-DR with the statement that the said order by the Tribunal is an ex-parte order without hearing the ld. CIT-DR nor the AR of the assessee. It was the submission that in that case, the ld. CIT-DR had sought for an adjournment which was rejected and the ld. AR on behalf of the assessee chose not to argue the appeals. It was the submission that the said order of the Tribunal should not be given the value of precedence.

7. We have considered rival submissions.

8. We are not going into merits of the appeals. Only because an opportunity of hearing as prescribed u/s.250(1) of the Act has not been provided by the ld. CIT(A) to the AO and there is a clear violation of principle of natural justice in respect of opportunity to be given to the AO against whose orders the appeals have been preferred, we are of the view that the orders of ld. CIT(A) for all the impugned assessment years would have to be set aside on account of non-granting of opportunity of hearing to the AO as per the provisions of Section 250(1) of the Act and we do so. Consequently, the issues in these appeals are restored to the file of CIT(A) for readjudication after granting opportunity of hearing to both appellant/assessee and the AO against whose orders the appeals have been preferred before the CIT(A) and pass reasoned order in accordance with law.

9. In the result, all the appeals of the revenue are partly allowed for statistical purposes.

Order dictated and pronounced in the open court on 23/06/2022.

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