What did the Tribunal hold?

The ITAT held that the CIT(A) passed a non-speaking ex-parte order without giving the assessee a proper opportunity to be heard. Therefore, the order was set aside to provide the assessee with a fresh hearing on merits.

The assessee's appeal before the CIT(A) was dismissed for non-prosecution after the CIT(A) issued notices which were allegedly not responded to by the assessee. The CIT(A) passed an ex-parte order without examining the assessment records or providing cogent reasons.

What were the issues?

Whether the CIT(A) erred in passing an ex-parte order without affording the assessee a proper opportunity of being heard and without deciding the appeal on merits.

Briliant Amenities, Kanpur vs ACIT | ITAT Lucknow 2019

Income Tax Appellate Tribunal, LUCKNOW BENCH “B”, LUCKNOW

Before: SHRI A.D JAIN & SHRI T.S. KAPOOR

For Appellant: Shri Swarn Singh,F CA

For Respondent: Shri C.K. Singh, DR

Hearing: 25/04/2019Pronounced: 03/05/2019

PER: A.D. JAIN, VICE PRESIDENT:

This is assessee’s appeal for the Assessment Year 2014-15, taking the following grounds:- “1. That the Ld. C.I.T. (Appeals)-I, Kanpur has erred in law and on facts in passing ex parte order and sustaining the arbitrary addition of Rs.1,78,05,000/- made by the Ld. A.O. 2. That in passing ex-parte order the Ld. C.I.T. (Appeals)-I, Kanpur did not even call and examine the assessment records. 3. That the Id. C.I.T. (Appeals)- I, Kanpur has erred in law and on facts in sustaining the arbitrary addition of Rs.21,67,600/- made by the Ld. A.O. after invoking (he provisions of section 69A of the Income Tax Act, 1961 4. That the Ld. C.I.T. (Appeals) - 1 has erred in law and on facts in sustaining the arbitrary addition of Rs. 32,51,400/- made by

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the Ld. A.O. after invoking the provisions of section 69A of the Income lax Act. 1961 5. That the Ld. C.I.T, (Appeals) - 1 has erred in law and on facts in sustaining arbitrary addition of Rs.1,23,86,000/- made by the Ld. A.O. after invoking the provisions of section 69A of the Income Tax Act, 1961. 6. That the additions sustained by the Ld. C.I.T, (Appeals) - 1 in the income of .the appellant company are unsustainable in law and on facts and also deserves to be added. 7. That the additions sustained by the Ld. C.I.T. (Appeals) - I. in the income of the appellant company arc much too high and excessive and also against the principles of natural justice and equity. 8. That the additions sustained by the C.I.T, (Appeals) - 1 in the income of the appellant company are without proper basis and deserves to be deleted. 9. That any other relief or reliefs as your honour may deem fit in the facts and circumstances of the case, be granted.”

By virtue of the impugned order, the ld. CIT(A) has dismissed the assessee’s appeal for non prosecution, observing that notices dated 13.04.2017 and 03.11.2017 for compliance on 25.04.2017 and 14.11.2017 were issued to assessee at the address submitted by the assessee in its memo of appeal; that however, no written submission or paper book had been filed in support of any of the grounds of appeal taken.

We have heard the rival parties and have gone through the material placed on record. We noted that the ld. CIT(A) has passed the ex-parte order as according to him, nobody has appeared on the date when the appeal was fixed for hearing before him. The order of the CIT(A) talks of the notice/s having been ‘issued’ or ‘sent’ to the assessee and mentions nothing with regard to service thereof on the assessee. We also noticed from the order of the CIT(A) that he has summarily decided the appeal of the assessee without giving any cogent reason and his order is non

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speaking order. Under these circumstances, we feel that one more opportunity should be given to the assessee as ld. CIT(A) has not decided the appeal on merits. The provision of section 250 which deals with the procedure in appeal before the ld. CIT(A), allows a right to an assessee to be heard at the time of hearing of appeal. Even the natural justice demands that no appeal should be disposed of without being heard the party or without giving him the proper and sufficient opportunity. We, therefore, in the interest of justice and fair play to both the parties, set aside the order of CIT(A) and restore the appeal to the file of the CIT(A) with the direction that the CIT(A) shall refix the said appeal and decide the appeal afresh after giving proper and sufficient opportunity of being heard to the assessee. The assessee is also directed to be present on the date of hearing fixed by ld. CIT(A) and not to seek undue adjournment and co- operate with ld. CIT(A) in disposing of the appeal.

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

Order pronounced in the open court on 03/05/2019. Sd/- Sd/- (T.S. Kapoor) (A.D. Jain) Accountant Member Vice President Aks – Dtd. 03/05/2019 Copy of order forwarded to: (1) The appellant (2) The respondent (3) Commissioner (4) CIT(A) (5) Departmental Representative (6) Guard File By order Assistant Registrar

BRILIANT AMENITIES,KANPUR vs. ASSISTANT COMMISSIONER OF INCOME TAX-1, KANPUR

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