SHAHNAWAZ MUSTAKKHAN PATHAN,MEHSANA vs. THE ITO, WARD-1, MEHSANA

At the outset itself, Ld. Counsel for the assessee stated that the order passed by the Ld. CIT(A) was an ex parte order and it was not the assessee who was to be faulted for the same. He Mustakkhan Pathan vs. ITO] A.Y. 2012-13 - 2 – contended that in the Form No.35 of appeal filed to the Ld. CIT(A) the assessee had categorically mentioned that the notices or communication of hearing should not be sent on email. He pointed out that despite so specifying, all notices were sent by the Ld. CIT(A) vide email and, therefore, remained uncomplied with. He drew our attention to the aforestated facts from Form No.35 which is part of the appeal set filed before me and from the order of the Ld. CIT(A) Page 3 where he pointed out that all notices of hearing were recorded by the Ld. CIT(A) to have been sent on email. He, therefore, contended that the assessee had remained unheard before the Ld. CIT(A), therefore, the appeal needs to be heard afresh by the first appellate authority.

Ld. DR fairly agreed with the same.

Having noted so, I find that in the present case, the assessment was framed making addition to the income of the assessee of Rs.37,98,608/- on account of alleged profits earned by the assessee on Multi Commodity Exchange transactions carried out during the year to the tune of Rs.75,97,21,755/-. The assessee had returned income of Rs.13,160/-, but during assessment proceedings, the assessee was unable to furnish proper explanation regarding the income earned from the commodity exchange transactions and, therefore, the AO estimated net profit @ 0.5% of the total transactions carried out by it, resulting in addition of Rs.37,98,608/- made to its income. Since, admittedly, the assessee had remained unheard before the Ld. CIT(A) on account of notices of hearing remaining unserved to the assessee, the issue needs to be restored back to the Ld. CIT(A) for consideration afresh after giving due opportunity of hearing to the assessee.