What did the Tribunal hold?

The tribunal held that an ex-parte order passed without granting a reasonable opportunity of being heard is bad in law. The appellate authority is bound to decide the appeal on merits even in the absence of the assessee.

The assessee's appeal before the CIT(A) was decided ex-parte without proper opportunity of being heard. Notices for hearing were sent to the old address despite the assessee intimating a change of address.

What were the issues?

Whether the CIT(A) erred in passing an ex-parte order without granting a reasonable opportunity of being heard to the assessee, violating principles of natural justice.

Abhimanyu Semlani vs ITO | ITAT Mumbai 2018

Income Tax Appellate Tribunal, “SMC” BENCH, MUMBAI

Before: SRI MAHAVIR SINGH

For Appellant: Shri Divyesh Shah, AR

Hearing: 01.11.2018Pronounced: 01.11.2018

Aayakr ApIla saM./ (inaQa-arNa baYa- / Assessment Year 2011-12) Mr. Abhimanue Semlani Income Tax Officer, Ward C/o Radiant Expositions 32(1)(1)(Erstwhile) Bandra Limited, No.3, Beverly Park Kurla Complex, Mumbai, Row House CHS Limited Now, Income Tax Officer Vs. Kanakia, Beverly Park, Near Ward 2(1), Thane Cinemax, Mira Road East, Thane-401107 (ApIlaaqaI- / Appellant) .. (p`%yaqaaI- / Respondent) स्थायी लेखा िं./PAN No. AWPPS3455C अपीलाथी की ओर े / Appellant by : Shri Divyesh Shah, 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)-44, Mumbai [in short CIT(A)], in appeal No. CIT(A)-44/ITO 32(1)(1)/ITA-393/2013-14 vide dated 13.01.2017. The Assessment was framed by the Income Tax Officer, Ward 25(1)(2) Mumbai (in short ‘ITO/ AO’) for the A.Y. 2011-12 vide dated 29.01.2014 under section 143(3) of the Income Tax Act, 1961 (hereinafter ‘the Act’).

At the outset, the learned counsel for the assessee drew my attention to the order of CIT(A) dated 13.01.2017 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 Learned CIT (A) erred in not granting proper or reasonable opportunity of being heard and passing an ex-parte order u/s 250.

2. The Learned CIT(A) failed to appreciate the fact that:

• Pursuant to filing Form 35, the appellant's AR had filed letter dated 01.12.2015 intimating change of address and had furnished the new address.

• The notices fixing the date of hearing were issued to old address instead of intimating the new address.

• The notices fixing the date of hearing were never served upon the appellant.

3. The Learned CIT (A) ought to have granted proper and reasonable opportunity to the appellant.

4. The ex-parte order u/s 250 passed without granting proper or reasonable opportunity requires to be set aside.”

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). 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[- .

ABHIMANYU SEMLANI,MUMBAI vs. ITO 32(1)(1) NOW INCOME TAX OFFICER WARD 2(1), THANE

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