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M/s Astha Studio Pvt. Ltd. C-95, South Extn., Part-II New Delhi-110049 Vs. Income Tax Officer, Ward-2(2), New Delhi
August, 06th 2015
              DELHI BENCH `SMC-2', NEW DELHI
                    Before Sh. N. K. Saini, AM
            ITA No. 778/Del/2015 : Asstt. Year : 2011-12
M/s Astha Studio Pvt. Ltd.         Vs Income Tax Officer,
C-95, South Extn., Part-II            Ward-2(2),
New Delhi-110049                      New Delhi
(APPELLANT)                           (RESPONDENT)
            Assessee by : None
            Revenue by : Sh. J. P. Citandraker, Sr. DR

Date of Hearing : 20.07.2015      Date of Pronouncement : 05.08.2015

      This is an appeal by the assessee against the order dated
12.11.2014 of ld. CIT(A)-V, New Delhi.

2.    During the course of hearing nobody was present on
behalf of the assessee, therefore, the appeal is decided ex-parte
after hearing the ld. DR, on merit.

3.    Following grounds have been raised in this appeal:

     "1. The order of the learned CIT(A) is bad in law and on the
     facts of the case.

     2. That the assessee has been regularly appearing before the
     learned appellate authorities on the fixed or adjourned dates.
                                     2                  ITA No.1014/Del/2015
                                                            Dilbag Singh

     3. That the last fixed date was 5.11.2014 and on the said date
     an adjournment application was made and the appeal was
     adjourned to 17.11.2014 on the letter itself.

     4. That the assessee appeared on 17.11.2014 for the hearing
     and was told that the case has been decided ex-parte because
     no recording of adjournment was made in the order sheet on

     5. That without prejudice to ground nos. 1 to 4 it may be stated
     the disallowance of TDS of Rs.10,80,000/- unjust and

     6. That the treatment of membership fee of Rs.1,10,300/- as
     capital expenditure instead of revenue expenditure is uncalled

     7. That the assessee craves leaves to add, amend, or withdraw
     any ground of appeal at the time of or before the hearing of

4.    From the above grounds it appears that the assessee is aggrieved
against the ex-parte order passed by the ld. CIT(A).

5.    Facts of the case in brief are that the assessee e-filed return of
income on 19.09.2011, declaring Nil income. However, the assessee had
paid tax u/s 115JB on book profits of Rs. 7,77,098/-. Later on, the case
was selected for scrutiny, the AO framed the assessment at an income of
Rs. 10,55,182/- and after allowing the brought forward business loss &
unabsorbed depreciation, the net taxable income was determined at Nil.
The AO also rejected the claim of TDS of Rs. 10,80,000/-.
                                    3                  ITA No.1014/Del/2015
                                                           Dilbag Singh

6.    Being aggrieved the assessee carried the matter to the ld. CIT(A)
who decided the appeal ex-parte by observing in para 3 of the impugned
order as under:
     "3. The appeal was first fixed for hearing by issue of notice
     dated 07.07.2014, fixing the date of hearing as 21.07.2014. On
     the said date, an adjournment application was filed,
     requesting for adjournment. Accordingly, the case was
     adjourned for 04.08.2014. However, again on 04.08.2014,
     further adjournment was sought, which request of the
     appellant was acceded to and the next hearing was fixed for
     21.08.2014. But once again on 21.08.2014, another
     adjournment was requested for, which was allowed upto
     23.09.2014. On 23.09.2014 neither anybody attended nor was
     any adjournment application received. The appeal was again
     fixed for hearing as per the following notices:

     S. Date of notice    Date fixed    for Remarks
     No.                  hearing
     1. 25.09.2014        09.10.2014        Adjourned to 27.10.2014
                                            on    request.     None
                                            appeared on 27.10.2014
     2.   28.10.2014      05.11.2014        None attended

7.    During the course of hearing, the ld. DR supported the order of the
AO and further submitted that since the assessee did not co-operate the
ld. CIT(A) had no alternative except to decide the case ex-parte.

8.    I have considered the submissions of the ld. DR and carefully gone
through the material available on the record. In the present case, it is
noticed that the ld. CIT(A) although mentioned that notice of hearing for
                                       4                  ITA No.1014/Del/2015
                                                              Dilbag Singh

05.11.2014 was issued on 28.10.2014, however, it is not brought on
record as to whether the said notice was served upon the assessee. It is
well settled that nobody should be condemned unheard as per the maxim
"audi alteram partem". In the present case, since the ld. CIT(A)
decided the appeal ex-parte without bringing on record that the notice
of hearing was served upon the assessee, I deem it appropriate to set
aside the impugned order and restore the same to the file of the ld.
CIT(A) to be adjudicated afresh in accordance with law after
providing due and reasonable opportunity of being heard to the

9.       In the result, the appeal of the assessee is allowed for statistical
 (Order Pronounced in the Court on 05/08/2015)

                                               (N. K. Saini)
                                           ACCOUNTANT MEMBER
Dated: 05/08/2015
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
                                                    ASSISTANT REGISTRAR
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