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Income Tax Appellate Tribunal, “C” BENCH, MUMBAI
Before: SHRI SAKTIJIT DEY & SHRI MANOJ KUMAR AGGARWAL
Date of Hearing – 14.05.2019 Date of Order – 24.05.2019
O R D E R PER SAKTIJIT DEY. J.M.
The aforesaid appeal has been filed by the assessee challenging the order dated 30th November 2017, passed by the learned Commissioner (Appeals)–32, Mumbai, pertaining to the assessment year 2011–12.
Though, the assessee has raised various grounds both on validity of re–opening of the assessment under section 147 of the Income Tax
2 Priti H. Poladia Act, 1961 (for short "the Act") as well as merits of various additions / disallowances made by the Assessing Officer and sustained by the learned Commissioner (Appeals), however, at the time of hearing, learned Authorised Representative preferred to argue on ground no.3, at the outset.
In ground no.3, assessee has challenged the ex–parte disposal of the appeal by learned Commissioner (Appeals).
We have heard the parties and perused the material on record. The return of income filed by the assessee for the impugned assessment year on 26th July 2011, was initially proposed under section 143(1) of the Act. Subsequently, the Assessing Officer being of the view that income declared under the head capital gain from the sale of shares is required to be assessed under the head income from business and professions, re–opened the assessment under section 147 of the Act. As alleged by the Assessing Officer, in response to the notices issued by him, neither the assessee appeared nor filed any submissions. Therefore, he proceeded to complete the assessment under section 144 of the Act, to the best of his judgment, by treating the income from sale of shares as income from business. Against the assessment order so passed, assessee preferred appeal before the first appellate authority.
3 Priti H. Poladia
As alleged by learned Commissioner (Appeals), though, the appeal was fixed on different dates, however, the assessee did not appear. Therefore, learned Commissioner (Appeals) ultimately decided the appeal ex–parte by dismissing it.
Learned Authorised Representative submitted, if one more opportunity is given to the assessee, she will appear before learned Commissioner (Appeals) to representing her case.
The learned Departmental Representative, though, submitted that in spite of sufficient opportunity being given the assessee did not avail them, however, he has no objection if one more opportunity is given to the assessee to represent her case before learned Commissioner (Appeals).
Having considered rival submissions, we do not intend to enter into the controversy as to for whose fault the appeal was decided ex– parte. Considering the submission of learned Authorised Representative that given an opportunity the assessee will appear and represent her case before learned Commissioner (Appeals), we are inclined to set aside the impugned order of learned Commissioner (Appeals) and restore the issues raised in the present appeal for de novo adjudication by learned Commissioner (Appeals). Needless to mention, learned Commissioner (Appeals) must afford reasonable
4 Priti H. Poladia opportunity of being heard to the assessee before deciding the appeal. At the same time, the assessee is directed to respond to the hearing notice to be issued by learned Commissioner (Appeals) and represent her case on the date fixed with all relevant materials and evidences. Further, the assessee must explain the delay, if any, in filing the appeal before the learned Commissioner (Appeals). With the aforesaid observations, the grounds raised are allowed for statistical purposes.