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Income Tax Appellate Tribunal, SURAT
Before: SHRI C.M.GARG & SHRI O.P.MEENA
आदेश /ORDER PER C.M.GARG, JUDICIAL MEMBER: These two appeals have been filed by the Assessee against the separate orders of Commissioner of Income Tax (Appeals)-2, Surat (‘CIT(A)’ for short) dated 24.08.2017 & 17.05.2018 for the Assessment Years (A.Ys) 2013-14 & 2014-15 respectively.
As agreed by both the parties facts and circumstances of both the appeals are identical and similar for the sake of convenience and brevity,
2 ITA Nos.153/SRT/2017 & 531/SRT/2018 (A.Ys: 2013-14 & 2014-15) Shri Shyamratan Sitaram Kedia we are taking appeal for AY 2013-14 as lead case. The grounds raised
by the Assessee in ITA No.153/SRT/2017 for AY 2013-14 read as follows:
That the ex-parte appeal order passed by Id. C.I.T.(A) is wrong and bad-in-law as the same has been passed without hearing the appellant. 2. That the ex-parte appeal order passed by Id. CIT(A) is wrong and bad-in-law as the same has been passed without considering the submission and contentions of the appellant furnished in the form of 'statement of facts' along with the appeal. 3. That the ex-parte appeal order passed by Id. CIT(A) dismissing the appeal of the appellant as un admitted is wrong and bad-in- law as the same has been passed without deciding the various grounds of appeal on merits on the basis of material available on record, statement of facts and grounds of appeal. 4. Without prejudice to other grounds of appeal, that the Id. CIT(A) has erred on facts and in law in upholding the addition of Rs. 25,16,723/- u/s. 68 of the Act, by dismissing the appeal of the appellant on ex-parte basis. 5. Without prejudice to other grounds of appeal, that the Id. CIT(A) has erred on facts and in law in upholding the addition of Rs. 54,000/- by treating the loans and advances given as unexplained income, by way of dismissing the appeal of the appellant on ex-parte basis. 6. That the Id. CIT(A) has erred in upholding the charging interest u/s. 234B of the Act, by way of dismissing the appeal of the appellant on ex-parte basis.
Grounds No.1 to 3: 3. We have heard the arguments of both sides and carefully perused
the relevant material placed on the record of the Tribunal. The ld.
Assessee’s Representative (AR) submitted that the ld. CIT(A) was wrong
and incorrect in passing ex-parte order and dismissing the appeal of the
assessee ex-parte on the allegation of non-prosecution without
3 ITA Nos.153/SRT/2017 & 531/SRT/2018 (A.Ys: 2013-14 & 2014-15) Shri Shyamratan Sitaram Kedia adjudicating the grounds raised by the assessee in Form No.35. The ld.
AR further submitted that the Id. CIT(A) is wrong and bad-in-law as the
same has been passed without considering the submission and
contentions of the appellant furnished in the form of 'statement of facts'
along with the appeal and the ex-parte appeal order passed by Id. CIT(A)
dismissing the appeal of the appellant as un admitted is wrong and bad-
in-law as the same has been passed without deciding the various grounds
of appeal on merits on the basis of material available on record,
statement of facts and grounds of appeal.
The ld. AR submitted that the assessee is suffering with severe
kidney problem and he was underwent a live donor renal transplantation
under our care on 07.06.2015 and two years before and almost two years
after he was under medical treatment for this decease. The ld. AR
submitted that before and after kidney transplant the assessee was
suffering with severe problems for that he was admitted to hospital
several times and also undergone diagnosis before the surgery and after
transplant he had to stay in a hygienic atmosphere to avoid infections and
failure of kidney transplant operation and for this purpose he stayed
isolated and confined to his bed room only for one year after the kidney
transplant. The ld. AR submitted that these are the reasons which
prevented the assessee from pursuing assessment and first appellate
4 ITA Nos.153/SRT/2017 & 531/SRT/2018 (A.Ys: 2013-14 & 2014-15) Shri Shyamratan Sitaram Kedia proceedings before the authorities below therefore, the ld. CIT(A) was not
justified and correct in passing ex-parte order and dismissing appeal of
the assessee ex-parte without adjudicating the grounds of the assessee
on merits. The ld. AR submitted that the appeal may kindly be restored
either to the file of AO or to the file ld. CIT(A) for a fresh adjudication.
Replying to the above, the ld. Departmental Representative (DR)
submitted that when the assessee is not cooperating with the proceedings
then, the ld. CIT(A) has no option but to dismiss appeal expartily.
However, in fairness, he submitted that the AO has passed detailed order
after allowing due opportunity of hearing to the assessee. Therefore, if it
is found necessary, just and proper then, the case may be resorted to the
file of the ld. CIT(A) for adjudication of appeal on merits.
On careful consideration of above rival submissions, first of all, we
may point out that from the medical documents submitted by the
assessee, it is vivid that the assessee underwent kidney transplant
operation on 07.06.2015 at Lanka Hospital, Colombo. Obviously, before
kidney transplant a patient has to suffer a lot during treatment and dialysis
procedure and after transplant he is bound to stay in a hygienic and lonely
position for a long time to avoid further infections and failure of operation.
In this situation, prior to one or two years from the date of operation i.e.,
07.06.2015 and subsequent to operation the assessee had to stay alone
5 ITA Nos.153/SRT/2017 & 531/SRT/2018 (A.Ys: 2013-14 & 2014-15) Shri Shyamratan Sitaram Kedia to avoid infections for couple of years. The assessment order for AY
2013-14 has been passed on 22.04.2016 and the ld. CIT(A) dismissed
appeal on 24.08.2017, whereas for AY 2014-15 the assessment order
was passed on 20.01.2017 and ld. CIT(A) dismissed appeal on
17.05.2018 which is surrounding period of surgery which was held on
07.06.2015. in view of above, we are of the considered opinion that the
ld. AO passed impugned assessment orders after allowing due
opportunity of hearing to the assessee, whereas the ld. CIT(A) dismissed
both the appeals expartily on the allegation of non-prosecution without
adjudicating the same on merits. Therefore, keeping in view the medical
papers submitted by the assessee, we are satisfied that due to health
problems, the assessee could not attend proceedings before ld. CIT(A)
due to medical reasons which were beyond control of the assessee
hence, we find it appropriate, and necessary to restore the case to the file
of the ld. CIT(A) to the first appellate stage for adjudication on merits after
allowing due opportunity of hearing to the assessee and without being
prejudiced from the impugned first appellate order. Since, facts and
circumstances of both the appeals are identical and similar therefore, our
conclusion noted for AY 2013-14 would apply mutatis mutandis to AY
2014-15 also and ground Nos. 1 to 3 of this appeal are also allowed and
this appeal is also restored to the file of the ld. CIT(A) for adjudication on
merits. Accordingly, appeals are allowed for statistical purposes on
6 ITA Nos.153/SRT/2017 & 531/SRT/2018 (A.Ys: 2013-14 & 2014-15) Shri Shyamratan Sitaram Kedia ground Nos. 1 to 3 and restored to the file of the ld. CIT(A) to first appellate stage.
In the result, both the appeals of the assessee are allowed for statistical purpose.
Order pronounced in the open court on this day of 16th October, 2018
Sd/- Sd/- (ओ पी मीना) (सी एम गग�) (O.P.MEENA) (C.M.GARG) लेखा सद�/Accountant Member �ाियक सद�/Judicial Member सूरत / Surat; िदनांक Dated : 16th October, 2018 EDN आदेश की #ितिलिप अ&ेिषत/Copy of the Order is forwarded to : 1. अपीलाथ�/The Appellant; 2.��थ� /The Respondent; 3.आयकर आयु$(अपील) /The concerned CIT(A); 4. The concerned Prl. CIT; 5. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, सूरत / DR, ITAT, Surat; 6. गाड� फाईल / Guard file.