MUKESH AGGARWAL,NEW DELHI vs. ITO, WARD- 2(5), GURGAON

During the course of hearing nobody was present on behalf of the assessee neither any adjournment was sought. I, therefore, proceeded ex-parte and the appeal is decided on merit after hearing the ld. DR.

The only grievance of the assessee in this appeal relates to the ex-parte order passed by the ld. CIT(A).

Facts of the case in brief are that the AO framed the assessment, ex-parte u/s 144 r.w.s. 147 of the Income Tax Act, 1961 and assessed the total income of Rs.35,53,230/-.

Being aggrieved the assessee carried the matter to the ld. CIT(A) who dismissed the appeal ex-parte by observing as under:

2 Mukesh Aggarwal “3.3 Notice for hearing in this case was issued on 24/10/2017. Notice was sent through speed post but was received back with the comments "Left". Thereafter, another notice dated 02/11/2017 was issued to the appellant fixing the case for hearing on 17/11/2017. The notice was sent to the Assessing Officer for getting it served on the appellant. On 17/11/2017 a request for adjournment of the case till third week of December, 2017 was received. The case was accordingly adjourned to 18/12/2017. On 18/12/2017 another request for adjournment was received and the case was adjourned to 15/01/2018, ft was informed that this was the final opportunity being granted. On 15/01/2018 once again, the appellant himself appeared and requested for one more adjournment. The case was adjourned to 01/02/2018. On 01/02/2018 once again, the appellant appeared and requested for once more adjournment. The case was finally adjourned to 12/02/2018. On 12/02/2018 once again none attended. The case is accordingly decided on the basis of documents on record. In the absence of any reply from the appellant, the matter is being decided ex-parte. The maxim “vigilantibus non-dermientibus jura subvenunt” i.e. “the law assist who are vigilant and not those who sleep over their rights” is applicable in this case.”

Now the assessee is in appeal.

I have considered the submissions of ld. DR, nobody was present on behalf of the assessee. In the present case, it is noticed from the observation of the ld. CIT(A) that the case was fixed for hearing on 12.02.2018. However, the ld. CIT(A) without deciding the appeal on merit dismissed the same by observing that nobody appeared nor any adjournment was sought on 12.02.2018. It is well settled that nobody should be condemned unheard as per the maxim “audi alteram partem”. I, therefore, by keeping in view the principles of natural justice, deem it appropriate to set aside this issue back to the file of the ld. CIT(A) to be adjudicated 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 26/10/2018)