SH. KABIR SODHI,CHANDIGARH vs. ACIT, CC-II, CHANDIGARH

आदेश/ORDER

PER DIVA SINGH

These two appeals have been filed by the assessee assailing the correctness of the separate orders dated 29.6.2018 of the CIT(A)-3, Gurgaon pertaining to 2011-12 and 2012-13 assessment years on different grounds including ground No.1, which is being adjudicated upon in the present proceedings, which remains identical in both the years. For ready reference, ground No.1 in ITA No.1300/Chd/2018 is reproduced hereunder: “1. That the Ld. Commissioner of Income Tax (Appeals) has erred in law in dismissing the appeal ex-parte without affording an opportunity of hearing which is against the

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Principals of Natural Justice and as such the order passed is illegal, arbitrary and unjustified.” 2. Before addressing the issue raised in the appeal, it is appropriate to address the fact that the assessee had moved an adjournment application seeking time to file a Paper Book to address the issues raised in the present appeal. Considering the fact that the impugned order is an ex-parte order where the assessee failed to appear, it was deemed appropriate to reject the adjournment application and pass over the appeal in order to decide ground No.1 raised in the present appeals. The Ld. AR referring to the orders, submitted that the assessee’s appeals were dismissed by the CIT(A) for non-representation as on the dates mentioned in para 3.1 of his order, the assessee did not participate. The Ld. AR submitted that the address of the assessee is correct. However, the assessee may not have received notices for the specific date. A perusal of the order shows that the case was fixed for hearing on 8.5.2018, 15.6.2018 and 27.6.2018. However, there is no mention as to how notice was stated to have been sent. In these circumstances, accepting the oral prayer of the Ld. AR and his undertaking that the assessee shall participate in the proceedings, it is deemed appropriate to restore the issue back after hearing the ld.CIT DR. However, the Ld. AR submitted that a perusal of the assessment order would also show that even in the assessment proceedings, the assessee could not place necessary evidences on record, on account of which evidences the assessee seeks to file fresh evidences which would need to be verified by the A.O. In these circumstances, it was his prayer that the issue may be remanded to the A.O. The ld. CIT DR, on going through the assessment order, submitted that despite opportunity, the assessee failed to place the evidences on record before the A.O. and the evidences would need to be verified by the A.O. However, it was his submissions that only accepting the Ld. AR’s undertaking that the assessee shall not abuse the trust, the order may be remanded. 3. We have heard the submissions and perused the material available on record. We find that in the peculiar facts and circumstances admittedly, specific opportunity was provided by the A.O. In the appellate proceedings, we note that the dates of hearing had been mentioned. However, the mode of communicating the same to the assessee is not found discussed. Further taking note of the impugned

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order it is seen that it has been dismissed on the grounds of non- representation, relying upon the decision of the Hon'ble Apex Court in the case of B.N. Bhattachargee & Other, 188 ITR 461 (SC). Considering the same we find that the procedure followed by the Ld.CIT(A) is not as per the statutory mandate, as set out in sub-section(6) of section 250 of the Income Tax Act, 1961. Further taking note of the fact that the necessary evidence is to be considered by the A.O., accordingly, in the light of the submissions of the parties before the Bench, accepting the oral undertaking given by the Ld. AR, the impugned orders are set aside and the issues are remanded back to the file of the A.O. with the direction to pass a speaking order in accordance with law. Needless to say that an effective and reasonable opportunity of being heard shall be granted to the assessee. While so directing, it is made clear that in the eventuality of abuse of the trust reposed on the assessee, the A.O. shall be free to pass an order on the basis of material available on record. Said order was pronounced in the Open Court at the time of hearing itself. 4. In the result, both the appeals of the assessee are allowed for statistical purposes. Order pronounced in the Open Court on 20th March, 2019.

Sd/- Sd/- ( डा. बी.आर.आर. कुमार) (�दवा �संह ) (Dr. B.R.R. KUMAR) (DIVA SINGH) लेखा सद�य/ Accountant Member �या�यक सद�य/Judicial Member *रती* आदेश क� ��त�ल�प अ�े�षत/ Copy of the order forwarded to : 1. अपीलाथ�/ The Appellant 2. ��यथ�/ The Respondent 3. आयकर आयु�त/ CIT 4. आयकर आयु�त (अपील)/ The CIT(A) 5. �वभागीय ��त�न�ध, आयकर अपील�य आ�धकरण, च�डीगढ़/ DR, ITAT, CHANDIGARH 6. गाड� फाईल/ Guard File

आदेशानुसार/ By order, सहायक पंजीकार/ Assistant Registrar