TOMAR BROTHERS,ETAWAH vs. ITO-2(2)(5), ETAWAH

Per LALIET KUMAR, J.M.:

This appeal arising out of the order passed by the CIT(A) on 29.12.2017 of A.Y. 2014-15. The assessee has raised the following grounds which read as under:

“1. BECAUSE, upon due consideration of facts and in law the Ld. CIT(A) was not justified in disposing off the appeal without allowing sufficient opportunity of hearing and without adjudicating the merits of the case.

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(b) BECAUSE, the disallowance is made on wrong assumption of facts contrary to law and principles of natural justice and in any view of tire matter deserves to be quashed.

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That the assessee is carried out the business during the assessment proceedings the assessee was called upon to produce the books of account and vouchers for verification by AO after giving the notice u/s 143(2)/142(1) of the Act. Further the assessee was also directed to produce the bank reconciliation statement giving details of transaction and the TDS certificate issued by the contractees and the payment receipt from them. The assessee, as per case of the assessee complied with the notice issued by the AO however, the AO was not convinced with the evidence/document issued by the assessee and accordingly made the addition of Rs.28,16,768/- at the paragraph 8 of the assessment order and Rs.9,53,000/- as per paragraph 8.1 of the assessment order and Rs.10,54,363/- as per paragraph 8.2 of assessment order.

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adjournment on 15.12.2017 however, on 15.12.2017 neither the assessee nor the

AR appeared before the CIT(A) and accordingly the ld. CIT(A) has decided the

issues on the basis of material available on record. It was submitted by the ld. AR

that the absence of the ld. AR on the date of hearing was on account of justifiable

reasons which prevented the assessee to appear before the Commissioner. It was

also submitted that the commissioner while passing the order had ignored the

written submissions/document placed on record and the order of Commissioner

was contrary to material available on record.

appeared before the lower Authorities deliberately, which was so recorded by the

Commissioner in his order and further it was submitted that while passing the

order, the ld. CIT(A) had also considered the merits of the case and pass the

reasoned order.

was the case of the ld. AR before us that on the date of hearing on 15.12.2017, the

assessee/AR was in the process of preparation for which certain facts were

required to be verified from the assessee. It was also the case that on account of

bona fide belief that the office of the AR shall apply for the adjournment and

accordingly next date of hearing would be granted by the ld. CIT(A). We found

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that the assessee, had defaulted in appearance before the CIT(A) on the date in

time granted by the Commissioner. Considering the totality of circumstances and

facts more particularly, when assessment proceedings is not adversarial and the

sole object of assessment proceeding is to find out the taxable income of the

assessee, in the right hand. The correct determination of taxable income is not

possible without the assistance and co-operation of the assessee. In the present case

despite opportunities granted by the lower Authority neither the assessee nor the

AR had appeared and as such the lower Authority had decided the matter on the

basis of the material available on record.

under wrong impression that office of the AR would take the adjournment in the

matter and next date would be given by the lower Authority. In our view, the

absence of the AR on the date of hearing was on account of the above said reasons.

Nonetheless, it is the settled position law that the litigant should not suffer on

account of lapses of AR/counsel, keeping in mind this proposition of law in mind ,

order of ld. CIT(A) is set aside and the appeal is remanded back to the file of the

CIT(A), with direction to decide the appeal within a period of six months from the

date of decision of this order. It is made clear that assessee/AR they shall appear

before the CIT(A) as and when the called upon by the CIT(A) and shall nottake

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undue adjournment without any justifiable reason. It is also expected from the

CIT(A), that he shall grant opportunity of hearing and grant sufficient time to file

the document/evidence to the assessee as may be advised to him in support of his

case. In the light of the above the appeal of the assessee is allowed for statistical

purposes.

Order pronounced in the open court on 19th /06/2019.

Sd/- Sd/- (Dr. M.L. MEENA) (LALIET KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKV* Copy forwarded to: 1. Assessee 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT AGRA