SMT. PRIYANKABEN SURENDRAKUMAR SHAH,PATAN vs. ITO, WARD-2. , PATAN

The captioned appeal has been filed at the instance of the Assessee against the order of the Learned Commissioner of Income Tax(Appeals), Gandhinagar, dated 25/11/2016 arising in the matter of assessment order passed under s. 143(3) of the Income Tax Act, 1961 (here-in-after referred to as "the Act") relevant to the Assessment Year 2008-09.

At the outset, it was perceived from the order of Ld. CIT(A) that matter was fixed for hearing on several occasions but none of the occasion anybody appeared on behalf of assessee except one time, that too seeking for the adjournment. Therefore, the Ld. CIT(A) passed an ex parte order due to non-appearance of the assessee by confirming the order of the AO. Against the impugned ex parte order of Ld. CIT(A), the assessee filed an appeal before us and pleaded that the impugned order of the ld. CIT-A and the assessment 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 respective 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 appeal was dismissed without deciding the same on merit. We also find that the assessee has also not appeared before the AO.

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 its 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 authorities below cannot be neglected/ignored. Therefore, we are inclined to levy a cost of Rs. 5,000/- upon the assessee for adopting the negligent approach in the proceedings before the authorities below. Accordingly, we direct the assessee to deposit a sum of Rs. 5,000/- 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 her case. Therefore, in exercise of power conferred under Rule 28 of Tribunal Rules, we restore this appeal to the file of the AO for reconsideration of all grounds of appeal after allowing proper opportunity of being heard in accordance with law.

In the result, for statistical purpose, the appeal of assessee is treated as allowed.