CANDOR GURGAON TWO DEVELOPERS & PROJECT PVT LTD,DELHI vs. DCIT CIRCLE-27(1), NEW DELHI

At the time of hearing the Ld. AR had filed an adjournment application seeking time to obtain relevant documents. Since the impugned order it was seen had been passed ex parte without hearing the assessee the Ld. AR was required to consider the request for adjournment. Accordingly, the appeal was passed over directing the Ld. AR and the Ld. Sr. DR to consider the aforesaid fact available on record.

In the next round the Ld. AR submitted that in the facts of the present case the assessee has admittedly remained unrepresented First Appellate Authority and though he has no instructions as to in regard to this lapse, however, it was his submission that possibly non appearance was on account of lack of notice. In the circumstances, it was his humble prayer that in case the impugned order is set aside to the Ld. CIT(A) he would give his oral undertaking that the assessee shall participate in the proceedings. The Ld. AR was required to address whether there was any change in the address made available to the CIT(A) and before the ITAT as both the addresses appear to be identical. The Ld. AR submitted that in case there is any change he would bring this fact to the notice of the appropriate authorities, however, it was submitted by him that the e-mail address as provided in Form No. 36 in the appellant’s personal information is the address provided of the Taxation Manager/Director and is correct. The same is as under: -

The request seeking time and to obtain the documents in the circumstances was orally withdrawn. The Ld. Sr. DR on considering the record did not pose any objection to the request for remand of the impugned order as admittedly it was passed without hearing the assessee.

We have heard the submissions and perused the material available on record. It is seen that certain additions were made to the declared income of the assessee by the AO. These additions were challenged in appeal before the CIT(A). However, before the CIT(A) the assessee did not participate and in the circumstances the issues were considered by the Ld. CIT(A) on the basis of the material available on record and the additions made stood confirmed. Aggrieved by this the assessee is in appeal before the ITAT. The factual background of opportunities given and issues arising were addressed by the CIT(A) in the following manner at page 5 of his order as under: - Page 2 of 4 “4. In this case notice dated 18.01.2019 was issued for 29.01.2019. However, none appeared on that date. Another, notice dated 30.01.2019 was issued on 08.02.2019. However, none appeared on that date also. In view of the aforesaid non-compliance, I am left with no alternative but to proceed to adjudicate the appeal on the basis of material available on record in a judicial manner. In this case income returned at Rs. 2,22,61,747/- has been determined at Rs. 6,15,57,300/- vide assessment order dated 30.03.2016. Ground No. 1 is general and needs no specific adjudication. Ground Nos. 2, 3, 5 and 6 relate to disallowance u/s 14A and connected issues. Ground No. 4 relates to disallowance pertaining to section 80IB of the Income Tax Act, 1961.”

Similarly it is seen that lack of representation and consequential lack of rebuttal on facts was again noticed by the Ld. CIT(A) in para 5.2 (page 8), para 6.2 (page 12), para 7.2 (page 15) and para 8.2 (page 17). Thus, in the facts of the present case admittedly the assessee was not heard. Without getting into the aspect as to the reasons for non representation before the First Appellate Authority, in the light of the oral undertaking given by the Ld. AR the impugned order is set aside and the issues are restored back to the file of the CIT(A) with a direction to pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard. The order is set aside in the interests of substantial justice. All necessary supporting documents/submissions, evidences, etc. relied upon shall be made available before the First Appellate Authority. While so directing it is made clear that in the eventuality of abuse of the trust reposed in the assessee the Ld. CIT(A) would be at liberty to pass an order on the basis of material available on record. The assessee in its own interest is directed to ensure full and proper participation before the said authority. Said order was pronounced in the open court at the time of hearing itself.

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