SHRI JIGAR NAVINKUMAR SHAH,AHMEDABAD vs. THE ITO, WARD-2(2)(3), AHMEDABAD

The matter was originally fixed for early hearing as per the application of the assessee dated 01.10.2019 in the Registry. The matter was listed for early hearing and considering the grounds raised by the [Shri Jigar N. Shah vs. ITO] A.Y. 2014-15 - 2 - assessee, it was considered expedient to adjudicate the appeal at this stage itself.

The learned AR for the assessee adverted our attention to para no.4 of the order of the CIT(A) showing a tabulated statement whereby an impression was given that the assessee has failed to comply with the notices issued by the first appellate authority. The CIT(A) accordingly decided the order ex parte owing to alleged non-compliance of the notice of hearing. In this context, the learned AR for the assessee submitted that the assessee has duly attended before the AO and therefore there was no reason for him to not attend before the first appellate authority for redressal of grievances. The learned AR for the assessee pointed out that it was as per the oral direction of CIT(A), the assessee moved adjournment application again and again and afresh date was given pursuant to such requests. The last application for adjournment was made on 12.12.2018 and the CIT(A) has dismissed the appeal of the assessee ex parte abruptly. The learned AR accordingly submitted that such ex parte order reiterating the observations of the AO is a futile exercise and has caused serious prejudice to the assessee in violation of principles of natural justice. The learned AR pointed out that various decisions sought to be relied upon by the CIT(A) are clearly distinguishable on facts as the assessee cannot be regarded as non-compliant on the person. The assessee has duly appeared in the assessment proceedings before the AO and has also responded to the hearing dates before the CIT(A) albeit in the shape of adjournment letter for the reasons narrated above. The learned AR accordingly submitted that a benign view be taken in the circumstances and ex parte order of the CIT(A) be set aside and be restored back to the file of CIT(A) for de novo adjudication on merits uninfluenced by observations made in ex parte proceedings.

The learned DR for the Revenue, on the other hand, relied upon the order of the CIT(A) and submitted that ample opportunities were given to the assessee, which were not availed leaving no recourse with the CIT(A) but to complete the proceedings before him ex parte. [Shri Jigar N. Shah vs. ITO] A.Y. 2014-15 - 3 - 5. We have carefully considered the rival submissions. We notice that assessee has duly appeared in the assessment proceedings before AO but however the notice of hearing before the CIT(A) has remained uncomplied. The CIT(A) has disposed of the appeal of the assessee relying on the observations of the AO without any independent inquiry into the facts in the absence of assistance from the assessee. Looking at the totality of circumstances, we find substance in the plea on behalf of the assessee towards violation of natural justice. In the absence of the assessee, it is naturally difficult for the first appellate authority to comprehend the nuances of the issues involved. The assistance from the assessee would, without doubt, bring the measure of intellect in the decision making. We are thus inclined to set aside the ex parte order of the CIT(A) passed in a summary manner and which lacks of objectivity, to prevent miscarriage of justice. The appeal is accordingly restored to the file of the CIT(A). All issues are kept open without fetters for consideration of the CIT(A). The CIT(A) shall pass order in accordance with law after giving reasonable opportunity to the assessee. The assessee shall fully cooperate in the proceedings before the CIT(A) without any demur. Subject to above directions, the appeal of the assessee is restored to the file of the CIT(A) for de novo adjudication.

In the result, appeal filed by the assessee is allowed for statistical purposes.