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Income Tax Appellate Tribunal, “G” BENCH, MUMBAI
AadoSa / O R D E R महावीर स िंह, न्याययक दस्य/ PER MAHAVIR SINGH, JM:
This appeal filed by the assessee is arising out of the order of Commissioner of Income Tax (Appeals)-3, Mumbai [in short CIT(A)], Appeal No. CIT(A)-3/IT-15/2014-15 vide order dated 21.12.2015. The 2 Assessment was framed by the Dy. Commissioner of Income Tax, Circle 1(3), Mumbai (in short ‘DCIT/ ITO / AO’) for the A.Y. 2011-12 vide order dated 21.02.2014 under section 143(3) of the Income Tax Act, 1961 (hereinafter ‘the Act’).
At the outset, the learned Counsel for the assessee first of all drew our attention to the order of CIT(A) and stated that the order of CIT(A) is ex-parte order. For this he further drew our attention to the following ground No. 1 and 2: - “1. The CIT(A) order dated 21 December 2015 is bad in law & void ab initio as the same was not served upon on the appellants and was collected from the office of the Commissioner of Income-tax (Appeals)-3 (hereinafter referred to as CIT(A)) on 11 May 2017.
2. The CIT(A) erred in passing an ex-parte order in violation of the principles of natural justice having failed to appreciate that the appellants were not granted any opportunity for a personal hearing.”
The learned Counsel for the assessee took us through the order of CIT(A) and argued that none of the alleged notice of hearing issued on various dates have been received by assessee. He stated that whether the show-cause notice was served on the assessee or not is not clear from the order of the CIT(A). When these facts were confronted to the learned Sr. Departmental Representative, he only stated that the assessee is non-cooperative in view of the facts mentioned by the CIT(A).
3 4. After hearing both the sides and going through the orders of CIT(A) it is noticed that the CIT(A) has not recorded the finding of the facts whether this notice was received by assessee or the show-cause notice issued dated 08.12.2015 was received by assessee. Now, the assessee has raised the issue of violation of principle of natural justice as the order of CIT(A) is ex-parte order. Even otherwise, from the very order of CIT(A) it is clear that the same is not on merits. Against each of the grounds, he is only making a passing reference that the assessee failed to adduce any evidence in his favour. Only on this premise, he dismissed the appeal of assessee and that also ex-parte. In our view, the assessee should be provided a personal hearing and for this assessee is also directed to co- operate with the Revenue so that the appropriate order can be passed after hearing the assessee. Taking into a consideration the facts in entirety and circumstances of the case, we set aside the order of CIT(A) and restore the matter back to the file to his file. Needless to say, the assessee is now apprised the above facts and he will suo moto attend the office of CIT(A) for the first hearing and CIT(A) will fix the hearing and hear him. The CIT(A) will provide reasonable opportunity of being heard to the assessee and decide the issue according to law.
In the result, the appeal of assessee is allowed for statistical purposes.
Order pronounced in the open court on 16-04-2019. (राजेश कुमार / RAJESH KUMAR) (महावीर स िंह /MAHAVIR SINGH) (लेखा दस्य / ACCOUNTANT MEMBER) (न्याययक दस्य/ JUDICIAL MEMBER) मुिंबई, ददनािंक/ Mumbai, Dated: 16-04-2019 स दीप सरकार, व.निजी सधिव / Sudip Sarkar, Sr.PS