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Income Tax Appellate Tribunal, “B” BENCH, MUMBAI
AadoSa / O R D E R महावीर स िंह, न्याययक दस्य/ PER MAHAVIR SINGH, JM:
This appeal filed the assessee is arising out of the order of Commissioner of Income Tax-20, [in short CIT(A)-20], Mumbai, in appeal No. CIT(A)-20/DCIT-12(1)(2)/IT-10695/2016-17 dated 15.11.2017. The Assessment was framed by the Income Tax Officer, Ward-12(1)(3), Mumbai (in short ‘ITO’/ AO’) for the A.Y. 2012-13 vide order dated 2 28.12.2016 under section 143(3) of the Income Tax Act, 1961 (hereinafter ‘the Act’).
At the outset, the learned Counsel took us through the order of CIT(A) and stated that the CIT(A) has passed an ex-parte order without hearing the assessee. The learned Counsel for the assessee stated that the assessee has taken the ground regarding violation of principle of Natural justice. For this assessee has raised the following ground No.1: -
1. Under the facts and circumstances of the Act and in law the Ld. CIT(A) has erred in passing an ex-parte order under section 250 of the Act.”
The learned Counsel for the assessee stated that the issue is exactly identical in assessee’s own case for AYs. 2010-11 & 2011-12 in & 27/Mum/2018 vide order dated 08.10.2018, wherein exactly identical issue has been decided by the Tribunal vide para 3 to 5 and the same read as under: - “3. The learned Counsel for the assessee drew our attention to Para 3.1 of the order of CIT(A) which reads as under: - “3.1 the notices of hearing were issued to the appellant, however, the appellant did not attend the hearing at any point of time. The details of the notices issued are as under:
Sr. No. Date of Date of Remarks Notice hearing issued 3 1. 01.09.2017 13/09/2017 None attended. Letter of adjournment was filed on 13.09.2017 2. 20.09.2017 03.10.2017 None attended. Coy of Form No. 35 & Grounds of appeal file din Tapal on 04.10.2017 3. 12.10.2017 24.11.2017 Nobody attended. 4. 24.10.2017 08.11.2017 Nobody attended.
4. The learned Counsel stated that on 13.09.2017 and 30.10.2017, assessee attended and filed the adjournment petition on first and second occasion. The assessee produced hard copy of From No. 35 and ground of appeal, which was filed in Tapal 04.10.2017. The learned Counsel stated that on 24.11.2017, the assessee attended but no attendance was marked. However, on 08.11.2017, the assessee could not attend before the CIT(A). The learned Counsel stated that finally appellate order was passed on 15.11.2017 in both the years i.e. AY 2010-11 and 2011-12. In view of the above, the learned Counsel for the assessee stated that the CIT(A) has passed ex-parte order without hearing the assessee. The learned Counsel for the assessee only requested that the order of CIT(A) be set aside and matter be remanded back to the file of the CIT(A) for fresh adjudication after allowing reasonable opportunity of being heard to the assessee.
4 When this was confronted to the learned Sr. Departmental Representative, he fairly agreed that the matter can be remanded back to the CIT(A) for fresh adjudication.
5. After going through the facts in entirety and case records, we are of the view that the CIT(A) should allow reasonable opportunity of being heard to the assessee. We find that the CIT(A) has not allowed reasonable opportunity of being heard to the assessee and passed ex- parte order. Hence, we set aside the order of CIT(A) and remand the matter back to the file of the CIT(A) for fresh adjudication. “
Respectfully following the decision of Tribunal for AY 2010-11 and 2011-12, we remand the matter back to the file of the CIT(A) for fresh adjudication.
In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open court on 28-01-2019. (महावीर स िंह /MAHAVIR SINGH) (जी. मंजुनाथ /G MANJUNATHA) (लेखा दस्य / ACCOUNTANT MEMBER) (न्याययक दस्य/ JUDICIAL MEMBER) मुिंबई, ददनािंक/ Mumbai, Dated: 28-01-2019 स दीप सरकार, व.निजी सधिव / Sudip Sarkar, Sr.PS