MAHENDRA BANSAL,DELHI vs. ACIT, NOIDA

This appeal by the assessee for the assessment year 2012-13 is directed against the order of learned CIT(A)-I, Noida dated 29th January, 2016.

Ground No.1 of the assessee’s appeal reads as under :-

At the time of hearing before us, it is stated by the learned counsel for the assessee that learned CIT(A) has decided the appeal ex-parte without allowing any opportunity of being heard to the 2 ITA-1860/Del/2016 assessee. He stated that though learned CIT(A) has mentioned to have issued notice twice but none of the notices issued was served upon the assessee. He, therefore, requested for setting aside the matter to the file of the Assessing Officer.

Learned DR, on the other hand, relied upon the order of learned CIT(A) and he stated that proper opportunity of being heard was allowed to the assessee and same was not availed by him. He also relied upon the decision of Hon’ble Gujarat High Court in the case of Principal Commissioner of Income Tax-3 Vs. Ashokji Chanduji Thakor – 2018-TIOL-2244-HC-AHM-IT, wherein Hon’ble Gujarat High Court has upheld the ex-parte order passed by the CIT(A).

We have carefully considered the submissions of both the sides and perused the material placed before us. It is undisputed that the CIT(A) or for that reason any other authority has to decide the matter after allowing adequate opportunity of being heard to the assessee. The CIT(A) has mentioned in his order “The appeal of the appellant was fixed for hearing on 20/08/2015 and again on 08/09/2015. However, neither the assessee entered appearance nor any request for adjournment was received”. However, in our opinion, mere issue of notice is not enough. It should be served well before the date of hearing. In this case, neither the date of issue of notice nor the date of service is mentioned. In the above circumstances, we have no reason to disbelieve the assertion of the learned counsel for the assessee that none of the above notices was received by the assessee. The facts before the Hon’ble Gujarat High Court in the case of Ashokji Chanduji Thakor (supra) relied upon by the learned DR were altogether different because in that case, admittedly, number of opportunities were given by the Assessing Officer as well as CIT(A) and the assessee was non- cooperative at every stage. In this case, the assessment order is 3 ITA-1860/Del/2016 under Section 143(3), meaning thereby, the assessee duly appeared before the Assessing Officer. Even before us, in the first hearing of the appeal, the assessee’s counsel appeared and therefore, it cannot be said that the assessee is non-cooperative in nature. In the above circumstances, we deem it appropriate to set aside the order of the learned CIT(A) and restore the matter to his file for readjudication in accordance with law after allowing adequate opportunity of being heard to the assessee.

In the result, the appeal of the assessee is deemed to be allowed for statistical purposes. Decision pronounced in the open Court on 07.05.2019.