What did the Tribunal hold?

The Tribunal found the reasons for the ex-parte orders to be beyond the assessee's control. In the interest of justice, the appeal was set aside and restored to the AO for a fresh decision.

The assessee's appeal was filed against ex-parte orders passed by the AO and CIT(A). The assessee could not present their case due to the severe illness of their tax consultant, who was diagnosed with cancer and became incapacitated.

What were the issues?

Whether ex-parte orders passed by tax authorities due to the incapacitation of the assessee's representative warrant a fresh opportunity for the assessee to present their case.

Shabihul Hassan Syed vs ITO | ITAT Mumbai 2019

Income Tax Appellate Tribunal, MUMBAI BENCHES “G” MUMBAI

Before: SHRI RAJESH KUMAR, HON. & SHRI AMARJIT SINGH, HON.

For Appellant: Shri Ajay R. Singh, Adv

For Respondent: Shri V. Vinod Kumar, Sr. DR

Hearing: 03/12/2019

PER RAJESH KUMAR, ACCOUNTANT MEMBER

This is an appeal filed by the assessee against the order of Commissioner of Income Tax (Appeals)-28, Mumbai, dated 17/07/2018 for the A.Y. 2014-15.

Ld.AR at the outset submitted that the ld.CIT(A) as well as AO has passed ex-parte orders for which the assessee is in no way responsible as the reason were beyond the control of the assessee. The ld.AR, in support of his arguments, filed an affidavit of the assessee stating that Shri V.G. Prasad, Tax

(Shabihul Hassan Syed) Consultant was looking after the tax matters and was authorised to appear before the AO, however, he fell sick in 2016 and diagnosed with cancer and ultimately went into coma. Ld.AR further submitted that Shri V.G. Prasad is still under medical treatment and is on the death bed. He further submitted that assessee tried several times to contact him and also visited his residence to meet him personally, but could not collect the file as his family did not allow the assessee to meet him. Thus, the assessee could not file the evidences and details before the authorities below, which resulted into passing ex-parte orders by the AO as well as ld.CIT(A). Ld.AR prayed before the Bench that one more opportunity may kindly be granted to the assessee to represent his case before the AO by restoring the matter to the file of the AO in the interest of justice and fair play.

Ld.DR, on the other hand, left the issue to the discretion of the Bench when a query was put to him on the ex-parte orders passed by the authorities below especially in view of the serious ailment of the counsel of the assessee.

After hearing the rival contentions of both the parties and perusing the material on record, we observe that the proceedings before the ld.CIT(A) as well as AO went ex-parte due to illness of the counsel of the assessee, who was diagnosed with cancer and is still confine to bed. We are convinced about the reasons which are apparently beyond the control of the assessee due to which the assessee could not represent the case before the AO and ld.CIT(A). Therefore, in the interest of justice and fair play, we are inclined to set aside the appeal to the file of the AO with a direction to decide the same denovo after giving reasonable opportunity of hearing to the assessee.

In the result, appeal of the assessee is allowed for statistical purpose.

Order Pronounced in the open Court on 03rd December, 2019

SHABIHUL HASSAN SYED,MUMBAI vs. ITO 17(3)(3), MUMBAI

What did the Tribunal hold?

What were the facts?

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