AVADH MERCHANTS PVT. LTD.,KOLKATA vs. I.T.O.,WARD-4(3), KOLKATA

This is the appeal preferred by the assessee against the order of the Commissioner of Income Tax(Appeals)-23, Kolkata [hereinafter referred to as ‘Ld. CIT(A)’] dated 03.02.2017 for the assessment year 2012-13.

At the outset, the ld. Counsel of the assessee submitted before the Bench that the ld COI(A) has passed the ex-parte appellate as the assessee could not appear before the ld CIT(A) on the appointed date because the assessee had not received any notice fixing of date hearing. The Ld. Counsel further submitted that even before the AO the assessee could not appear as no notice u/s 142(1) was served upon the assessee and the assessment order was also passed u/s 144(1) of the Income Tax Act, 1961 (hereinafter referred to as the Act). The Ld. Counsel of the assessee stated that since the assessee was not heard on merit before any of the lower authorities which has also resulted in the violation principles of natural justice and fair play . The Ld. A.R. submitted that the assessee may kindly be allowed one more opportunity to present its case before the AO or the Ld. CIT(A) so that the order could be passed after hearing the assessee on merit which would be in the interest of justice and fair play. The ld counsel relied on the decision of Hon’ble Bombay High Court in the case of Bharat Petroleum Corporation Ltd. vs. ITAT [2013] 359 ITR 371 (Bom) wherein after referring to the decision of Hon’ble Supreme Court in the case of CIT vs. S. Cheniappa Mudaliar [1969] 74 ITR 41 (SC) held that that the mandate of Section 254(1) of the Act is to dispose off the appeal on the merit even in the absence of the assessee. The Ld. Counsel for the assessee also referred to the decision of Hon’ble Gauhati High Court in the case of Rajendra Prasad Borah vs. ITAT [2008] 302 ITR 243 (Gau) interpreting the Rule 24 of the Income Tax appellate Tribunal Rules, 1963 in which it was held that the Tribunal has no empower to dismiss the appeal for default of the assessee to appear on the strength of ratio laid down by Hon’ble Apex Court in the case of CIT vs. S. Cheniappa Mudaliar (supra).

The Ld. D.R. on the other hand objected to the arguments of the Ld. A.R. that the assessee could not attend the cases due to non-service of notice. The ld DR submitted that despite several opportunities the assessee did not appear however, left the issue at the decision of the Bench.

After hearing the rival contention and perusing the material on record, we note that the AO as well as the Ld. CIT(A) has passed an ex-parte order in the absence of assessee as the assessee did not appear on the appointed date fixed for hearing. Considering the facts and circumstances of the case, we are of the view that ends of justice would be met if the assessee is given one more opportunity to present its case on merit. Accordingly we restore the issue back to the file of Ld. CIT(A) to decide the same afresh after affording a reasonable opportunity to the assessee and the assessee is also directed to make compliance before the Ld. CIT(A) and extend full co-operation in order to enable the Ld. CIT(A) to decide and dispose off the appeal.

In the result, the appeal of the assessee is allowed for statistical purposes. Order is pronounced in the open court on 27th June, 2022 Sd/- Sd/- (Sanjay Garg) (Rajesh Kumar) Judicial Member Accountant Member Dated: 27th June, 2022 SB, Sr. PS Copy of the order forwarded to: 1. Appellant- Avadh Merchants Pvt. Ltd, 6th Floor, South West Block, Viswakarma Building. 86C, Topsia Road (South), Kolkata-700046.