LALMANI MISHRA,PRATAPGARH vs. I T OFFICER, PRATAPGARH

PER SHRI VIJAY PAL RAO, JUDICIAL MEMBER:

1. That in any view of the matter assessment order passed u/s 143(3) of the Act dated 25.03.2015 is bad both on the facts and in law and by such assessment order income as determined at Rs.11,28,074/- is highly unjustified in the facts and circumstances of the case.

2. That in any view of the matter the ld. CIT(A) was wrong in framing ex- parte appeal without providing reasonable opportunity to the assessee and the order is not speaking order in the eyes of law.

3. That in any view of the matter income declared in the return on the basis of disclosed books of account reflected in audit report should have been accepted and the finding and observation in respect of books of accounts in the assessment order in para 2 are general and vague.

6. That in any view of the matter the interest charged u/s. 234A, 234B and 234C of the Income Tax Act is highly unjustified.

before hearing of the appeal.”

2. At the time of hearing, the ld. AR of the assessee has submitted that in Ground No.2, the assessee is challenging the ex-parte order passed by the ld. CIT(A) without giving an appropriate of hearing. Thus at the outset, the ld. AR has submitted that the CIT(A) has not passed the speaking order and therefore, the impugned order may be set aside and the matter may be remanded to the record of the CIT(A) for deciding the same afresh after giving one more opportunity of hearing to the assessee.

3. On the other hand, the ld. DR has opposed to the further opportunity to be given to the assessee and submitted that the ld. CIT(A) has already has given sufficient opportunity of hearing to the assessee, but the assessee has failed to attend the hearing before the CIT(A).

4. Having considered the rival submissions and careful perusal of the impugned order, it is noted that the ld. CIT(A) has dismissed the appeal of the assessee summarily for want of any representation. The relevant finding of the ld. CIT(A) in Para 5 are as under: “5. The aforesaid non compliances reveals beyond doubt that the appellant has nothing to say in the matter of his appeal. Thus, it appears that the assessee in not interested in prosecution of the present appeal and the same 2 is liable to be dismissed on this ground itself. The law assists those who are vigilant and not those who sleep over their rights. This principle is embodied in the well known dictum ‘VIGILATIBUS, NON DORMENTIBUS, JURA SUBVENIUNT”. Considering the facts and relying on the decision of the Act, ITAT, Delhi bench, in the case of CIT vs. Multiplan India Ltd., 38-ITD- 320 and the judgment of the Hon'ble Madhya Pradesh High Court in the case of Estate of Late Tukoji Rao Holker vs. CWT (1997) 223-ITR- 480 the present appeal is hereby dismissed.”

5. It is further noted that the appeal of the assessee was listed for hearing by the ld. CIT(A) on three occasions i.e. 09.01.2018, 05.02.2018 and 07.03.2018. On 09.01.2018 and 07.03.2018 none has attended the proceedings, whereas on 05.02.2018 an adjournment application was filed by the assessee and the hearing was adjourned. Thus, when on the last occasion i.e. 07.03.2018 the assessee did not attend the proceedings the appeal of the assessee was dismissed. Further without going into the controversy of proper opportunity of hearing, when the ld. CIT(A) has not passed the speaking order to decide the appeal on merits then the impugned order is not sustainable in law. Hence, in the facts and circumstances of the case, the impugned order is set aside and matter is remanded to the record of the ld. CIT(A) for deciding the same afresh by a speaking order after giving one more opportunity of hearing to the assessee.