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Income Tax Appellate Tribunal, “SMC” BENCH, MUMBAI
Before: SRI MAHAVIR SINGH
Aayakr ApIlaIya AiQakrNa “SMC” nyaayapIz maMuba[- mao. IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, MUMBAI श्री महावीर स िंह, न्याययक दस्य के मक्ष । BEFORE SRI MAHAVIR SINGH, JUDICIAL MEMBER Aayakr ApIla saM./ (inaQa-arNa baYa- / Assessment Year 2011-12) Purkharam S. Choudhary The Income Tax Officer, Shop No:7 Transval Terrace, Ward 19(2)(5), Matru Vs. 135/153, P.B. Marg, Mumbai- Mandir, Mumbai-400 007 400 008 .. (p`%yaqaaI- / Respondent) (ApIlaaqaI- / Appellant) स्थायी लेखा िं./PAN No. ADEPC9661Q अपीलाथी की ओर े / Appellant by : Shri Poojan Mehta, AR प्रत्यथी की ओर े / Respondent by : Shri B.S. Bist, DR ुनवाई की तारीख / Date of hearing: 01.11.2018 घोषणा की तारीख / Date of pronouncement : 01.11.2018 AadoSa / O R D E R महावीर स िंह, न्याययक दस्य/ PER MAHAVIR SINGH, JM:
This appeal by the assessee is arising out of the order of Commissioner of Income Tax (Appeals)-29, Mumbai [in short CIT(A)], in appeal No. CIT(A)-29/IT-403/ITO-19(2)(5)/16-17 vide dated 11.08.2017. The Assessment was framed by the Income Tax Officer, Wad 19(2)(5) Mumbai (in short ‘ITO/ AO’) for the A.Y. 2011-12 vide dated 12.02.2016 under section 143(3) of the Income Tax Act, 1961 (hereinafter ‘the Act’).
2. At the outset, the learned counsel for the assessee drew my attention to the order of CIT(A) dated 11.08.2017 and stated that the appeal is decided ex-parte without hearing the assessee and also stated that there is no discussion on merits and hence, the order is bad in law. I have gone through the first ground raised regarding natural justice which reads as under: -
“1. The order passed by the learned Commissioner of Income Tax is bad in law and facts.
The appellant was not given proper chance of hearing by learned Commissioner of Income Tax the notice for appeal hearing was not received by the appellant due to the fact that his change office address that time. The 14 Commissioner of Income Tax without giving proper chance to the appellant passed the ex- partee order within 3 days. There after the appeal order also sent at the old address And was returned back to the Dept. Unserved The appellant came to know above the order only when phone call was received from appeal section asking him collect order. The appellant sent his clerk after few days to collect the said order but refused to give her order in the absence of requisite authority from appellant Finally there had to approach their Chartered Accountant for collecting above order, who were very much busy that time. However they found
some time and arranged to collect the order by the end of January2018.
The Learned Commissioner of Income Tax erred in accepting the order of the assessing officer.
4. Appellant prayed that he has got a very strong case on merits and appellant be given opportunity to present the case and learned CIT(A) be directed to decide the same onb merits.”
3. When this was confronted to the learned Sr. DR Shri BS Bist, he could not controvert that the notices for fixing appeal were not sent on the new address. Even otherwise the order is ex-parte as is apparent from the order of CIT(A). This is evident from Para 7 of the order of CIT(A) which reads as under: -
“7. As stated earlier, in the present case, the appellant did not attend the hearing even once nor filed letters for adjournment. Once proceedings u/s 143(3) r.w.s 147 of the Act were initiated on the appellant, it would be expected that the appeal would be duly pursued. However, in the instant case, the appellant has taken a lackadaisical approach with regard to the appellate proceedings. In view of these facts, the disallowances made by the assessing officer are upheld and the grounds raised by the appellant are dismissed.”
I am of the view where an appeal has been disposed off, even though on merits, after taking the relevant facts into consideration without giving a notice of hearing to the appellant, an application for setting aside the ex-parte order is maintenable. In other words, the appellate authority has no jurisdiction to dismiss the appeal for default and moreover it is bound to decide the appeal on merits by a speaking order even in the absence of the assessee. I find that none of the principle was followed. Hence, I set aside the order of CIT(A) and remand the same back to his file for allowing reasonable opportunity of being heard to the assessee and also passed a speaking order on merits.
In the result, the appeal of assessee is allowed for statistical purposes.
Order pronounced in the open court on 01-11-2018. AadoSa kI GaaoYaNaa Kulao mao idnaMk 01-11-2018kao kI ga[- .