SANJAYSINH BATUKSINH VAGHELA,SURENDRANAGAR vs. ITO, WARD-3, SURENDRANAGAR

The captioned appeal has been filed at the instance of the Assessee against the order of the Learned Commissioner of Income Tax (Appeals)-7, Ahmedabad, arising in the matter of assessment order passed under s. 144 of the Income Tax Act, 1961 (here-in-after referred to as "the Act") relevant to the Assessment Year 2015-16.

At the outset, it was perceived from the order of the AO and the Ld. CIT(A) that the several notices were issued and served upon the assessee for fixing the date of the hearing but in none of the occasion anybody appeared on behalf of assessee. Therefore, the AO and Ld. CIT(A) passed an ex parte order due to non- appearance of the assessee and after making several additions based on best judgment. Against, the impugned ex-parte order of the Ld. CIT(A), the assessee filed an appeal before us and pleaded that the impugned order has been passed without giving opportunity to the assessee. Accordingly, the ld. AR prayed before us to set aside the appeal to the AO for fresh adjudication as per the law. The ld. AR also assured that the assessee shall extend the full co-operation during the set aside proceedings.

On perusal of appellate order, we find that Ld. CIT(A) affirmed the action of Assessing Officer ex parte without mentioning any reason for confirming the same on merits. The provisions of Section 250(6) of the Act require the Commissioner (Appeal) to dispose of the appeal in writing with reasoning. But we find from the impugned order of Ld. CIT(A), who confirmed the order of AO, that the appeals were dismissed without deciding the same on merit.

We further find that the principle of audi alteram partem is the basic concept of natural justice. The expression “audi alteram partem” implies that a person must be given an opportunity to defend himself. This principle is sine qua non of every civilized society.

Indeed, the assessee after filing the appeal should be vigilant enough for pursing it before the authorities but for this, if the assessee fails to pursue the appeal, the assessee cannot be penalized by confirming such huge addition without hearing his points of contentions. The mistake committed by the assesse and punishment given to it (the assessee) by sustaining the addition is not commensurate to each other in the given facts and circumstances. But the negligent/dilly-dally approach of the assessee before the Ld.CIT(A) cannot be neglected/ignored. Therefore, we are inclined to levy a cost of Rs. 1,000/- upon the assessee for adopting the negligent approach in the appeal proceedings before the Ld. CIT(A). Accordingly, we direct the assessee to deposit a sum of Rs. 1,000/- to the Income Tax Department prior to the commencement of hearing before the AO.

In view of the, we are of the view that the assessee must be given one more opportunity of hearing to represent its case. Therefore, in exercise of power conferred under Rule 28 of Tribunal Rules, we restore this appeal to the file of the AO for fresh adjudication after allowing proper opportunity of being heard in accordance with law.

Nevertheless, the assessee is aware of the case set up against it, accordingly the assessee is directed to prepare his submission and cooperate in the proceedings and its failure will entail confirmation of the impugned addition made by the AO. Hence, this ground of assessee’s appeal stands allowed for statistical purpose.

In the result, for statistical purpose, all the grounds of appeals of assessee are treated as allowed.