SHRI BHAWANI PRASAD AGRAWAL,JHUNJHUNU vs. INCOME TAX OFFICER, WARD-1, JHUNJHUNU

At the outset, the ld. AR submitted that the appeal of the assessee has been dismissed by the ld. CIT(A) ex-party qua the assessee. It was submitted that the assessee has moved adjournment applications before the ld. CIT(A) on 02.01.2019 and thereafter on 22.01.2019 stating therein that the Authorized Representative is not keeping good health but suffering from illness and therefore, the case may be adjourned. The ld. CIT(A) had accepted the adjournment application filed on 02.01.2019 and thereafter the matter was adjourned on 22.01.2019. However, in respect of adjournment application filed on 22.01.2019, neither the application was rejected nor any communication was given except that the Authorized Representative’s assistant was asked to file the application in his office which was done by him. It was submitted that filing of application seeking adjournment clearly indicates the compliance on the date of hearing on 22.01.2019 before the CIT(A), however, ld. CIT(A) in para 5 of his order has stated that the assessee has filed adjournment application with frivolous reasons. It was submitted that ld. CIT(A) had concluded himself that the reasons given in the adjournment application are frivolous without having any evidence to state how the same are frivolous or the reasons specified therein are wrong. It is submitted that AR was suffering from various diseases and was undergoing treatment with different doctors in different hospitals and in support of it, copies of the medical prescriptions are placed on record and perusal of these documents indicate that right from 28th Dec, 2018 till date, the AR’s treatment is going on and the condition was severe till 1st Feb, 2019. It was submitted that the conclusion drawn by the CIT(A) of giving frivolous reasons is totally incorrect and wrong and is being 2 Shri Bhawani Prasad Agarwal, Jhunjhunu Vs. ITO, Jhunjhunu based upon his own imagination which as per powers given under the Act to the CIT(A) as to decide the appeal is totally unjustified and incorrect and against the statutory provisions of the law. Further, reliance was placed on the Co-ordinate Bench decision in case of Swati Pawa vs. DCIT (ITA No. 3098/DEL/2016 vide order dated 05.02.2019), Ravi Ramnani vs. ITO, Tonk (ITA No. 220/JP/2018 vide order dated 20.06.2018) and Om Prakash Saini vs. ITO, Jaipur (ITA No. 114/JP/2018-19 vide order dated 20.03.2019). It was accordingly submitted that given that the appeal has not been decided on merits by the ld CIT(A), the same may kindly be restored to file of the CIT(A) for adjudication on merits.

The ld. DR is heard who referred to the order of ld. CIT(A) and submitted that as many as 5 opportunities were given to the assessee which have either not been complied with or the assessee has filed adjournment letters with frivolous reasons and therefore, the ld CIT(A) was justified in dismissing the appeal. At the same time, he fairly submitted that since the appeal has not been decided on merits, the Revenue has no objection where the matter is set-aside to the file of the ld CIT(A).

We have heard the rival contentions and gone through the material available on record. It is no doubt true that the ld. CIT(A) has granted as many as five opportunities to the assessee, at the same time, the assessee has moved the adjournment applications and the ld. CIT(A) has granted the adjournment except in respect of matter listed on 22.01.2019 wherein the AR has given the reasons for non attendance on account of ill health and going to Delhi for medical treatment as advised by the Doctor. We find that non- appearance on account of medical ground is a reasonable cause for non appearance on part of the authorized representative and therefore, the assessee deserves one more opportunity to represent its case before the ld. 3 Shri Bhawani Prasad Agarwal, Jhunjhunu Vs. ITO, Jhunjhunu CIT(A). In view of the same and given that the matter has not been decided on merits, we hereby set aside the matter to the file of ld. CIT(A) who shall decide the appeal on merits after giving reasonable opportunity to the assessee.