RAKHI GUPTA,NEW DELHI vs. ITO, WARD- 36(4), NEW DELHI

Following grounds have been raised in this appeal: “1. Action of Commissioner of Income Tax (A) in passing ex-parte order without giving the proper opportunity of being heard is unjust, illegal, arbitrary and against the facts and circumstances of the case.

2. Action of Commissioner of Income Tax(A) in treating exempted long term capital gain of Rs.29,99,400/- as non- genuine and making addition under section 68 of Income Tax Act is unjust, illegal, arbitrary and against the facts and circumstances of the case.

Facts of the case in brief are that the assessee e-filed the return of income on 27.03.2015 declaring an income of Rs.3,61,634/- after claiming deduction u/s VI-A of the Income Tax Act, 1961 (hereinafter referred to as the Act) amounting to Rs.17,077/-. The said return was processed u/s 143(1) of the Act. The AO, however, framed the assessment at an income of Rs.33,61,030/- by making the addition of Rs.29,99,400/- u/s 68 of the Act.

Being aggrieved the assessee carried the matter to the ld. CIT(A) who confirmed the said addition by passing the ex-parte order. The ld. CIT(A) observed that the assessee either sought adjournment on one ground or other without substantiating the reason for the adjournment.

Now the assessee is in appeal. The ld. Counsel for the assessee submitted that due and proper opportunity was not provided by the ld. CIT(A) who sustained the addition made by the AO in arbitrary manner.

In his rival submission, the ld. Sr. DR supported the impugned order passed by the ld. CIT(A) and submitted that the assessee did not comply the notices issued by the ld. CIT(A), so there was no alternative except to decide the appeal of the assessee ex-parte.

I have considered the submissions of both the parties and perused the material available on the record. In the present case, it is an admitted fact that the ld. CIT(A) decided the appeal ex-parte. He simply stated that the notice dated 3 Rakhi Gupta 01.03.2018 was issued to the assessee for hearing on 16.03.2018. However, the assessee furnished a letter of adjournment alongwith Power of Attorney on dak counter. From the above observation of the ld. CIT(A), it is not clear as to what were the reasons for seeking the adjournment. It is also not brought on record as to whether the reasons given by the assessee for seeking the adjournment were genuine. I, therefore, by keeping in view the principles of natural justice and the maxim “audi alteram partem” which means that nobody should be condemned unheard, deem it appropriate to set aside the impugned order and remand the matter back to the file of the ld. CIT(A) to be decided afresh in accordance with law after providing due and reasonable opportunity of being heard to the assessee.

In the result, the appeal of the assessee is allowed for statistical purposes. (Order Pronounced in the Court on 06/11/2018)