HYVA INDIA PVT. LTD.,NAVI MUMBAI vs. ACIT-10(3) NOW ACIT 15(2)(1), MUMBAI

We heard the parties and perused the record. We noticed that the Assessing Officer has reopened the assessment u/s. 147 of the Act and he was constrained to pass the order to the best of his judgement u/s. 144 read with section 147 of the Act.

Before the learned CIT(A) also, the assessee did not appear and was seeking adjournments by filing adjournment letters. We noticed that the learned CIT(A) has given nine opportunities to the assessee and finally he has passed the order ex-parte, without hearing the assessee.

The Learned AR submitted that the assessee has been cooperating with the Assessing Officer in completion of assessment of other years. Before the learned CIT(A) also, the assessee waited for the remand report, that was called for by the learned CIT(A) from the Assessing Officer and hence the assessee was constrained to file letters seeking adjournment of the matter. Accordingly, learned AR submitted that there is no willful non-compliance on the part of the assessee and accordingly pleaded that the assessee may be provided with one more opportunity to present its case on merits before the learned CIT(A).

The Learned DR strongly objected to the plea put forth by learned AR. The Learned DR submitted that the assessee has not appeared before Assessing Officer as well as the learned CIT(A) and hence its plea should not be admitted.

We have heard the rival contentions and perused the record. We noticed that the assessee has not appeared before the Assessing Officer as well as the learned CIT(A), hence both the parties have passed the order ex-parte, without hearing the assessee. The Learned AR has submitted that the assessee has filed explanations before the learned CIT(A) and hence the first appellate authority has called for a remand report from the Assessing Officer. Since the assessee was under the impression that the learned CIT(A) would not finalise the appeal unless remand report receives from the Assessing Officer and since the remand report was not sent by the Assessing Officer, the assessee was constrained to seek adjournment time and again. Even though there is some merit in the said submission of the assessee, yet we are of the view that the assessee should have appeared before the learned CIT(A) without seeking adjournments and should have left the matter to the discretion of the learned CIT(A). Thus, in our view, there was some amount of lethargy on the part of the assessee. However, in the interest of natural justice, we are of the view that the assessee may be provided with an opportunity to present its case before the learned CIT(A). However, same should be on certain term, i.e., on payment of cost of ` 10,000/- (Rupees ten thousand) to the credit of Income

In the result, appeal filed by the assessee is allowed for statistical purposes. Order has been pronounced in the Court on 24.10.2018.