ASHOK KR. JHA,PATNA vs. ITO, WARD-4(2), PATNA

That the captioned case is fixed for hearing on 14.03.2018. 2. That the assessee’s business has been closed down since April, 2016 and for this reason the assessee has gone out in search of alternative source of livelihood.

That the undersigned has sought instructions from him on certain issues involved in the case which are yet to come.

That in absence of instructions from the assessee, the undersigned who is A/R in this case, is finding it difficult to argue the case.

That for the reasons stated above, the hearing of the case may be adjourned.

In my opinion, the reasons given by the ld. Counsel for the assessee are not sufficient to grant the adjournment, therefore, the application moved by the ld. Counsel for the assessee is rejected and the appeal is decided after considering the submissions of ld. Sr. DR and the material on record. The Registry has pointed out that the appeal is barred by limitation by 90 days. The assessee moved an application dated 21.07.2017 for condonation of delay by stating therein as under: “Most Respectfully Sheweth

That the assessee is an individual engaged in running small business.

That the assessee, at the material time, was engaged in retail trade of liquor which he was carrying out for past many years.

That the assessee has been filing his return of income regularly. The assessee’s return of income for A.Y. 2009-10 was selected for scrutiny. The AO assessed the income at three times of the returned income. The assessee preferred appeal before the CIT(A) in the year 2012 which was pending disposal.

That the State Govt. imposed total prohibition in the State of Bihar w.e.f. 01.04.2016 which rendered the assessee jobless.

That the assessee is facing difficulty in meeting both the ends meet and is in deep financial crisis.

That in the meantime, the CIT(A) dismissed the assessee’s appeal on the ground of non-prosecution. The order was communicated on 28.02.2017. 7. That as the assessee was engaged in finding some job for himself so that he could provide for himself and his family, he could not attend to filing of the subject appeal which was due for filing on or before 28.04.2017. Arrangement of Rs.10,000.00 towards appeal fee was also an issue in view of financial crisis being faced by the assessee.

That for the reasons stated above, the assessee could not file the subject appeal in time and there has been a delay of days in filing.

That the delay in filing of appeal be condoned and the appeal be admitted.

The ld. Sr. DR opposed the aforesaid application moved by the assessee for condonation of delay.

After considering the submissions of ld. Sr. DR and the contents of the aforesaid application. In the present case, it appears that the assessee was facing the financial crisis and was unable to deposit the requisite fee in time. Now the assessee has deposited the requisite fee vide challan dated 17.07.2017 which is placed on record. Therefore, by taking a liberal view and considering the peculiar facts of this Ashok Kumar Jha appeal is admitted. However, it cannot be a precedent for the other cases.

The main grievance of the assessee in this appeal relates to the dismissal of the appeal ex-parte without providing sufficient opportunity of being heard.

Facts of the case in brief are that the assessee was a retail trader of country liquor and filed the return of income on 10.02.2010, declaring an income of Rs.3,32,523/-. Later on, the case was selected for scrutiny. The AO framed the assessment ex-parte by estimating the net profit @ 5% of the total sale turnover and worked out the income of the assessee at Rs.10,13,918/-.

Being aggrieved the assessee carried the matter to the ld. CIT(A) who dismissed the appeal ex-parte in limine for non-prosecution and stated that the notices issued were not complied by the assessee. He also stated that the last notice was issued on 23.01.2017 for hearing on 07.02.2017 but there was no compliance.

Now the assessee is in appeal. Nobody was present on behalf of the assessee, the ld. Sr. DR supported the impugned order passed by the ld. CIT(A).

I have considered the submissions of the ld. Sr. DR and carefully gone through the material available on the record. In the present case, it is an admitted fact that the ld. CIT(A) passed the impugned order ex-parte. He simply stated that the notices were issued fixing the date of hearing which remained non-complied. The latest notice was issued on 23.01.2017 fixing the date of hearing on 17.02.2017, however, Ashok Kumar Jha nothing is brought on record to substantiate that any of the notices issued for hearing was served upon the assessee. It is well settled that nobody should be condemned unheard as per the maxim “audi alteram partem”. I, therefore, by considering the totality of the facts of the present case, deem it appropriate to set aside this case 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 16 /03/2018) (N. K. Saini) ACCOUNTANT MEMBER