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Income Tax Appellate Tribunal, “SMC” BENCH, AHMEDABAD
Before: SHRI WASEEM AHMED&
PER Ms. MADHUMITA ROY - JM:
The instant appeal filed by the assessee is directed against the order dated 10.10.2018 passed by the Commissioner of Income Tax (Appeals)-6, Ahmedabad under section 143(3) of the Income Tax Act, 1961 (in short ‘the Act’) arising out of the order dated 23.03.2016 passed by the ITO, Ward. 6(1)(4), Ahmedabad for the Assessment Year 2013-14.
The assessee being an individual furnished his return of income through electronic media on 17.09.2014 for A.Y. 2013-14 being taxable income at Rs. NIL along with the statement of income, trading and P&L account and balance sheet. His main source of income was from business and short term capital
ITA No.2353/Ahd/2018 Himanshu Bharatbhai Jani vs. ITO Asst.Year –2013-14 - 2 - gain. Under scrutiny notice u/s 143(2) of the Act dated 31.08.2015 was issued upon the assessee followed by a further notice u/s 143(2) of the Act dated 23.09.2015 and notice u/s 142(1) of the Act dated 26.10.2015. The said assessment was ultimately finalized by the Learned AO upon making addition of Rs. 29,89,900/- upon disallowance of unsecured loan and added back to the total income of the assessee u/s 68 of the Act. In appeal, the same was confirmed by the Learned CIT(A) ex-parte on the ground that earlier in three occasions when the matter was fixed for hearing none appeared on behalf of the assessee neither any adjournment was sought for. Ultimately, on 09.10.2018, the matter was heard ex-parte and finalized upon confirmation of addition by the Learned AO.
At the time of hearing of the instant appeal, the Learned Counsel appearing for the assessee submitted before us that on 09.10.2018, the assessee made a request praying for adjournment by way of an application on the ground that his advocate engaged in the matter is under medical treatment. Since he was not fit and was under treatment, he was unable to appear before the Learned CIT(A). Though such prayer of the assessee has been mentioned in the order impugned by the Learned CIT(A) by reproducing the relevant portion of such application at Page-3 the Learned CIT(A) has not given any credence to that without assigning any reason, whatsoever. Since the assessee sought for adjournment on cogent reason on that particular day, which was not taken into consideration by the Learned CIT(A) in its proper prospective and in spite of such request the matter was heard ex-parte against the assessee, the Learned AR prayed before us for quashing the order impugned on the ground that the said order is bad in law for violating the principle of natural justice against the assessee. He, thus further prayed the issue to be set aside to the file
ITA No.2353/Ahd/2018 Himanshu Bharatbhai Jani vs. ITO Asst.Year –2013-14 - 3 - of the Learned CIT(A) for fresh adjudication of the matter. However, the Learned DR has not raised any serious objection to such contention made by the Learned AR.
Heard the respective parties, perused the relevant materials available on record. Having regard to the facts and circumstances of the case we are of the considered view that in order to prevent the miscarriage of justice an opportunity of hearing be given to the assessee to represent his case before the Learned CIT(A) and we thus set aside the issue to the file of the Learned CIT(A) to adjudicate the same afresh upon giving hearing to the assessee and upon taking into consideration the evidences already on record and also the evidences which the assessee may chose to file at the time of hearing of the instant appeal. Assessee’s appeal is, thus, allowed for statistical purposes.
In the result, assessee’s appeal is allowed for statistical purposes. This Order pronounced in Open Court on 10/05/2019
Sd/- Sd/- ( WASEEM AHMED ) ( Ms. MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad; Dated 10/05/2019 Priti Yadav, Sr.PS
ITA No.2353/Ahd/2018 Himanshu Bharatbhai Jani vs. ITO Asst.Year –2013-14 - 4 -
आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त(अपील) / The CIT(A)-6, Ahmedabad. 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER, स�या�पत ��त //True Copy// उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील�य अ�धकरण, अहमदाबाद / ITAT, Ahmedabad 1. Date of dictation 09.05.2019 (Dictation pages 3) 2. Date on which the typed draft is placed before the Dictating Member 10.05.2019 3. Other Member… 4. Date on which the approved draft comes to the Sr.P.S./P.S ……10.05.2019 5. Date on which the fair order is placed before the Dictating Member for pronouncement… 6. Date on which the fair order comes back to the Sr.P.S./P.S……. 7. Date on which the file goes to the Bench Clerk………………… 8. Date on which the file goes to the Head Clerk…………………………………... 9. The date on which the file goes to the Assistant Registrar for signature on the order…………………….. 10. Date of Despatch of the Order………………