NEEL KUMAR JAIN,TIKAMGARH vs. I T O WARD DISTRICT TIKAMGARH, TIKAMGARH

This is an Appeal by the Assessee directed against the Order dated 21/12/2018 by the Commissioner of Income-Tax (Appeals), Gwalior (‘CIT(A)’ for short), dismissing the assessee’s appeal contesting his assessment under section 147 read with section 144 of the Income Tax Act, 1961 (‘the Act’ hereafter) dated 15/12/2017 for assessment year (AY) 2009-10.

At the very outset, it was submitted by the ld. counsel for the assessee, Sh. Mishra, that, true, there had been no representation by the assessee before the first appellate authority, but that was wholly unintentional and occasioned due to the wife of the assessee suffering from cancer at the relevant time, i.e., in October-December, 2018, when the appeal was fixed for hearing before him. The disease proved fatal. It is under these accentuating circumstances that the 1 Neel Kumar Jain v. ITO (AY 2009-10) assessee was constrained not to appear before the said authority, and that there was, as inferred, no lack of interest or earnestness in pursuing/prosecuting his appeal before him by the assessee. He, however, on being questioned, could not furnish any satisfactory reply as to why the assessee did not put up any appearance in the assessment proceedings as well, resulting in the impugned assessment being u/s. 144, i.e., an ex parte assessment. As it appears, the ld. counsel had not made any enquiry with the assessee in that respect. He further undertook that the assessee shall fully cooperate in the proceedings before the first appellate authority, i.e., were the matter to be remanded back to his file for a fresh consideration on merits. No objection to the suggested course of action was raised by the ld. Sr. DR.

I have heard the parties, and perused the material on record. The assessee’s only grievance, as projected before me, is as to the appellate order being an ex parte order. Accepting the statement at Bar by the ld. counsel, it would be, under the circumstances leading to the impugned order, in the interest of justice that the matter is remanded back to the file of the first appellate authority for a decision on the merits of the case after allowing a fresh, reasonable opportunity to the assessee to present his case before him. This would also ensure a consideration of the assessee’s case, whatever be it, at least once by the Revenue. Further, sure, normally this Tribunal would insist on such circumstances being evidenced or averred by way of a sworn affidavit by the assessee. However, this is dispensed with in the instant case in view of the grave, personal circumstances stated as being faced by the assessee, on which a misstatement by any counsel is inconceivable. It is also made clear that no opinion on the merits of the case is being expressed thereby, and on which there were in fact no arguments/pleadings by or on the assessee’s behalf.