SHIV KRISHNA MANDAL,PATNA vs. I.T.O., WARD -6(3), PATNA

IN THE INCOME TAX APPELLATE TRIBUNAL PATNA BENCH, PATNA Before Sh. N. K Saini; AM and Sh. Sudhanshu Srivastava, JM ITA No.163/Pat./2017, Asstt: Year 2011-12 Shri Krishna Mandal, Patna: (APPELLANT) PAN No. AJNPM39I6H Vs ITO, Ward-6(3),Patna (Bihar) (RESPONDENT) Assessee by Shri Rakesh Kumar, Adv. Revenue by Shri Kausik Kumar Das, Sr: DR Date of Hearing 13.03.2018 Date of Pronouncement : 14 03.2018 ORDER Per Sudhanshu Srivastava_JM: This is an appeal filed by the assessee and challenges the order of the Ld_ CIT (Appeals)-2, Patna; wherein, vide the impugned order dated 19.01.2017, the Ld_ CIT(A) has dismissed the assessee's appeal for assessment year 2011-12 for the reason of the assessee $ failure to prosecute the appeal. 2 At the outset, the Ld. AR, submitted that the assessee was unable to appear before the AO as well as 2 ITA No.163/Pat./2017 the Ld_ CIT (A) and that the orders of both the lower authorities below had been passed ex-parte. It was prayed that the assessee had sought adjournments before the Ao as well as the Ld_ CIT (A) but the same were not considered by the lower authorities and the assessee's case was decided ex-parte qua the assessee_ It was prayed that the assessee should be given one more opportun ity to represent its case before the lower authorities_ 3 In response, the Ld_ Sr . D.R strongly opposed the assessee's plea and read out the relevant portions from the assessment order as well as the order of the Ld_ CIT (A) and emphasized that the assessee is a willful defaulter and had not availed the numerous opportunity provided by both the lower authorities and, therefore, no further opportunity should be given to the assessee. 4 We have heard the rival submissions and have also perused the material on record_ It is true that the assessee had not 3 ITA No.163/Pat /2017 appeared before the AO as well as the Ld: CIT (A): However, it is also seen that the assessee had requested for adjournment before the AO as well as before the Ld. CIT (A) which was refused The AO has made assessment u/s144 of the Income tax Act, 1961_ The Ld: CIT (A) has dismissed the assessee's appeal without examining the case on merits. The AO has added all the expenses claimed under the various heads as well as depreciation to the income of the assessee_ The AO has also added an amount of Rs.56,60,000 / - to the income of the assessee as undisclosed income from the sale of immovable property as per the AIR report and the main reason for the AO to resorting to best judgment assessment was the failure on the part of the assessee to appear before the AO_ Undoubtedly, the approach of the assessee has also been very casual and careless. However, looking into the facts of the case and in the interest of justice, we restore the issues to the file of the AO for passing the assessment order de novo after giving proper opportunity to the assessee to present its case We also direct the assessee to extend all possible cooperation during the assessment ITA No.163/Pat./2017 proceedings failing which the AO shall be at liberty to proceed ex-parte in accordance with law. 5_ In the result, the appeal of the assessee stands allowed for statistical purposes. (Order Pronounced in the Court on 14/03/2018) - N.K Saini) - (Sudhanshu Srivastava) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 14 /03/2018 S.sinha*