The order of the Bench was delivered by
H. S. Sidhu, Judicial Member - These appeals by the Revenue are directed against the common order of the learned Commissioner of Income-tax (Appeals)-XXX, New Delhi dated December 21, 2012 pertaining to the assessment years 2009-10 and 2010-11. Since the issues involved in these appeals are common, we are therefore, proceeding to dispose them of by this consolidated order for the sake of convenience.
2. The grounds raised in the appeal read as under :
"1. |
The learned Commissioner of Income-tax (Appeals) has grossly erred in law and on facts in deleting the demand on the ground that TDS provisions are not attracted on the payment of passenger service fee (PSF). |
2. |
The learned Commissioner of Income-tax (Appeals) has erred in law and on facts in not comprehending the findings of the hon'ble High Court who had reserved all the rights and contentions of the Revenue and the assessee before the appellate authority while clarifying the remark initially given on the issue of applicability of TDS on passenger service fee which was only prima facie by not conclusive. |
3. |
The learned Commissioner of Income-tax (Appeals) has erred in law and on facts in not granting an opportunity of being heard to the Assessing Officer before adjudicating the appeal in favour of the assessee-company, through such official request was twice made to the learned Commissioner of Income-tax (Appeals) vide letter dated October 19, 2012 and November 1, 2012. |
4. |
The learned Commissioner of Income-tax (Appeals) while holding that the payment of passenger service fee is not subject to TDS, has erred in law and on facts in not appreciating the fact of deducting tax under section 194J of the Act by the assessee-company itself on the payment of passenger service fee from the financial year 2009-10. |
5. |
The Revenue craves leave to add, alter or amend any of the grounds of appeal at the time of hearing." |
3. The facts of the case are not in dispute by both parties, therefore, need not be repeated here for the sake of convenience.
4. At the time of hearing Shri Ramesh Chandra, the learned Commissioner of Income-tax (Departmental representative) draw our attention towards the issue raised in ground No. 3 regarding not granting the opportunity of hearing by the learned Commissioner of Income-tax (Appeals) to the Assessing Officer, before adjudicating the appeal in favour of the assessee-company. He also draw our attention to section 250(2)(b) of the Income-tax Act, 1961 and requested that the order passed by the first appellate authority is against the principles of natural justice and the issues in dispute may be set aside to the file of the learned Commissioner of Income-tax (Appeals) to decide the issues afresh, after giving adequate opportunity to the parties, as required under section 250(2)(b) of the Income-tax Act, 1961.
5. On the contrary, the learned authorised representative, Shri Rupesh Jain, has not raised any objection on the request of the learned Commissioner of Income-tax (Departmental representative).
6. We have heard both parties and perused the orders passed by the lower authorities along with the provision of section 250(2)(b) of the Income-tax Act, 1961. For the sake of convenience section 250(2)(b) is reproduced as under :
"(2) The following shall have the right to be heard at the hearing of the appeal-
| (a) |
|
The appellant, either in person or by an authorised representative ; |
(b) |
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The Assessing Officer, either in person or by a representative." |
7. In view of the above, it is amply clear that the Assessing Officer should be provided an opportunity of being heard, which was not provided by the learned Commissioner of Income-tax (Appeals) to the Assessing Officer. Therefore, the impugned order is contrary to the principles of natural justice as well as the provisions of section 250(2)(b) of the Income-tax Act, 1961, thus, it is liable to be cancelled and we cancel the impugned order and also direct the learned first appellate authority to decide the issues in dispute in accordance with law, after giving the adequate opportunity to the Assessing Officer in terms of section 250(2)(b) of the Income-tax Act, 1961.
8. In the result, both appeals filed by the Revenue stand allowed for statistical purposes.
The order pronounced in the open court on August 22, 2014.