M/S B.K.GOENKA & SONS ,KOLKATA vs. I.T.O.,WARD-34(1), KOLKATA

The assessee in the present case is an HUF, which is engaged in the business of trading. The return of income for the year under consideration was filed by it electronically on 29.09.2015 declaring total income of Rs.5,49,610/-. In the assessment completed under section 143(3) of the Act vide an order dated 27.12.2016, the claim of the assessee for exemption on account of long-term capital gain arising from the sale of shares of M/s. Kailash Auto Finance Limited was held to be bogus by the Assessing Officer and an addition of Rs.26,18,650/- was made by him to the total income of the assessee on this issue.

Against the order passed by the Assessing Officer under section 143(3) of the Act, an appeal was preferred by the assessee before the ld. CIT(Appeals) and since there was no satisfactory compliance on the part of the assessee during the course of appellate proceedings before him, the ld. CIT(Appeals) dismissed the appeal of the assessee vide his appellate order dated 26.12.2019 passed ex-parte. Aggrieved by the order of the ld. CIT(Appeals), the assessee has preferred this appeal before the Tribunal.

At the time of hearing fixed in this appeal today, none has appeared on behalf of the assessee. This appeal of the assessee is, therefore, being disposed of after hearing the arguments of the ld. D.R. and perusing the material available on record. It is noted that the appeal filed by the assessee before the ld. CIT(Appeals) was dismissed by him ex-parte vide his impugned order in paragraph no. 6 after noting the non-compliance on the part of the assessee as under:- “6. It appears that the appellant-HUF is not interested in prosecuting the appeal, as despite valid service of notice there has been no attempt to defend itself or to bring new facts and submissions on record.

As is evident from the aforesaid relevant portion of the impugned order of the ld. CIT(Appeals), the appeal of the assessee was fixed for hearing by the ld. CIT(Appeals) only on one occasion and without giving any further opportunity of being heard to the assessee, the appeal of the assessee was dismissed by him ex-parte vide his impugned order. Keeping in view these facts of the case, it appears that no proper and sufficient opportunity of being heard was given by the ld. CIT(Appeals) to the assessee before dismissing the appeal of the assessee vide his impugned order passed ex-parte and there is a clear violation of principles of natural justice. Even the ld. D.R. has not been able to dispute this position, which is clearly evident from the impugned order of the ld. CIT(Appeals). I, therefore, consider it fair and proper and in the interest of justice to set aside the impugned order passed by the ld. CIT(Appeals) ex-parte and remit the matter back to him for disposing of the appeal of the assessee afresh on merit in accordance with law by passing a well discussed and well reasoned order after giving proper and sufficient opportunity of being heard to the assessee. The assessee is directed to make due compliance before the ld. CIT(A) and extend all the possible cooperation in order to enable the ld. CIT(A) to dispose of the appeal afresh expeditiously.

In the result, the appeal of the assessee is treated as allowed for statistical purposes. Order pronounced in the open Court on August 04, 2021.