C.R.RETAIL MALL (INDIA) LTD,MUMBAI vs. ITO 6(2)(1), MUMBAI

The present appeal filed by the assessee is challenging against the order of the CIT(A)-12, Mumbai dated 10.03.16 for AY 2010-11.

We have heard the counsels for both the parties and we have also perused the material placed on record well as the orders passed by the revenue authorities. From the records, we noticed that Ld. CIT(A) had passed an ex-parte order as nobody appeared on behalf of the assessee before Ld. CIT(A). On perusal of the order, we also noticed that initially the appeal was fixed on 06.05.15, but on that day, nobody appeared nor any adjournment petition was filed by the assessee, again the matter fixed on 18.01.16, still nobody appeared, thus the matter was again adjourned to 24.02.16, but on that day too, adjournment petition was filed by assessee requesting for adjournment ‘upto March 2016’ and the case was adjourned to 10.03.16 for the last time, but on that also, nobody appeared on behalf of the assessee. In our view, it was the bounded duty of the parties i.e assessee as C. R. Retail Malls (India) Ltd. well as the Department to appear before the Ld. CIT(A). Since, this was the assessee’s appeal, therefore it was all the more important for the assessee to appear before Ld. CIT(A). However, the assessee had not acted with due diligence. Nevertheless, the principles of natural justice demands that the lis between the parties should be decided on merits after providing due opportunity of hearing to both the parties.

Be that as it may, considering the facts and circumstances of the present case and while considering the request of the assessee that he could not appear before Ld. CIT(A) because of unavoidable circumstances, therefore we are of the considered view that the ends of justice would be met only when we set aside the ex-parte order passed by the learned CIT(A) and restore back the matter to the file of the Ld. CIT(A) for deciding the appeal on merits after providing opportunity of hearing to the assessee subject to cost of Rs. 5,000/- to be paid by the assessee in the account of Prime Minister’s Relief Fund within 30 days from the date of receipt of this order. We further direct that assessee would appear before Ld. CIT(A) within 30 days from C. R. Retail Malls (India) Ltd. the date of receipt of this order and would cooperate in the early disposal of the appeal.

Before parting, we may make it clear that our decision to restore the matter back to the file of Ld. CIT(A) shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by Ld. CIT(A) independently in accordance with law. With these directions, the grounds of appeal raised by the assessee are partly allowed for statistical purposes.