LALIT PRASAD AGARWAL ,HOWRAH vs. ITO, WARD - 61(3), , KOLKATA

At the outset itself, it has been brought to our notice by the Ld. Counsel for assessee that the Ld. CIT(A) has passed an ex parte order. It was brought to our notice that on the first date of hearing of the appeal, the Ld. AR appeared before the Ld. CIT(A) and during the second hearing since the Ld. AR was suffering from fever could not attend the hearing. So, later when he went to the office of Ld CIT(A) to enquire about the next date of hearing, he was astonished to know that the appeal has been dismissed for non-appearance of the AR of the assessee. Therefore, the Ld. AR pleads that no proper opportunity was granted by the Ld. CIT(A) while deciding the appeal of the assessee. So, he prayed that the matter may be remanded back to the file of the Ld. CIT(A). On the other hand, the Ld. DR vehemently opposes this plea of the assessee and contended that the assessee/Ld. AR was Lalit Prasad Agarwal, AY:2015-16 not vigilant during the appellate proceeding and reminded us that the law does not help the sleeping person, therefore, the appeal should not be remanded back to the Ld. CIT(A).

We have heard rival submissions and gone through the facts and circumstances of the case. We note that the first appellate authority has decided the case ex parte without going into the merits of the case. Justice should not only be done but should be seemed to be done. In this case since Ld. AR of the assessee appeared before the Ld. CIT(A) on the first date of hearing and his absence for the second date was for reasonable cause being prevented by fever, the Ld. CIT(A) should have given an opportunity before deciding the appeal ex parte that too without going to the merits. This action of Ld. CIT(A) cannot be countenanced and, therefore, we set aside the impugned order of the Ld. CIT(A) and remand the matter back to his file to decide the appeal on merits after providing adequate opportunity of being heard to the assessee.

In the result, the appeal of assessee is allowed for statistical purposes. Order is pronounced in the open court on 1st March, 2019. Sd/- (Aby. T. Varkey) Judicial Member Dated : 1st March, 2019 Jd. (Sr.P.S.) Copy of the order forwarded to: Appellant – Shri Lalit Prasad Agarwal, 1st floor, Flat No. 103A, Akash 1. Ganga, 22, Krishna Kamal Bhattacharjee Lane, Howrah-711101. Respondent – ITO, Ward-61(3), Kolkata. 2 3. CIT(A)-19, Kolkata (sent through e-mail) 4. CIT, Kolkata.