SHYAMRATAN SITARAM KEDIA,SURAT vs. INCOME TAX OFFICER, WARD-1(2)(4), SURAT

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.

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:

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.

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.

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.

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.

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.