SRI SRI ADHAR GUPTA,KOLKATA vs. ITO,WARD-33(3),KOLKATA, KOLKATA

The assessee in the present is an individual who filed his return of income for the year under consideration on 31.03.2007 declaring a total income of Rs. 1,93,810/-. The assessment was originally completed by the AO on the same income vide an order dated 31.12.2008 passed u/s 143(3) of the Act. The said assessment however was subsequently reopened and in the reassessment made u/s 143(3)/147 vide an order dated 28.03.2013, the total income of the assessee was determined by the AO at Rs. 63,34,080/- after making addition of Rs. 61,40,262/- on account of long term capital gain and Rs. 8,815/- on account of short term capital gain.

Against the order passed by the AO u/s 143(3)/147, an appeal was filed by the assessee before the Ld. CIT(A) which was partly allowed by the Ld. CIT(A) – 9, Kolkata vide an order dated 31.03.2006. The effect to the said order of the Ld. CIT(A) was given by the AO vide an order dated 11.05.2016 whereby he recomputed the total income of the assessee at Rs. 47,41,100/-. According to the assessee, there were certain mistakes in the order passed by the AO on 11.05.2016 giving effect the order of the Ld. CIT u/s 250 of the Act. He, therefore, made an application u/s 154 on 23rd May, 2016 seeking rectification of the said mistakes. He also filed on 10.06.2016 an appeal before the Ld. CIT(A) against the order of the AO dated 11.05.2016. When the said appeal was taken up for hearing by the Ld. CIT(A), adjournment was sought by the assessee on the ground that the application filed by him u/s 154 before the AO seeking rectification of the order of the AO dated 11.05.2016 was still pending. Keeping in view the non-appearance of the assessee during the course of appellate proceedings before him and the fact that application for rectification u/s 154 had already been filed by the assessee before the AO, the Ld. CIT(A) proceeded to dismiss the appeal of the assessee vide his appellate order dated 30.11.2018 passed ex- parte. Aggrieved by the order of the Ld. CIT(A), the assessee has preferred this appeal before the Tribunal.

I have heard the arguments of both the sides and also perused the relevant material available on record. As rightly submitted by the learned counsel for the assessee, adjournments were sought by the assessee during the course of appellate proceedings before the Ld. CIT(A) as his application for rectification on the same issue was pending before the AO. There was thus a sufficient cause for the non-appearance

Assessment Year: 2006-07 Shri Adhar Gupta of the assessee before the Ld. CIT(A) and the Ld. CIT(A), in my opinion, should have kept the appeal of the assessee pending till the disposal of the application of the assessee for rectification by the AO on the same issues instead of dismissing the same ex-parte. I, therefore, set aside the impugned order passed by the Ld. CIT(A) ex-parte and remit the matter back to him with the direction to keep the same pending till the disposal of the assessee’s application for rectification u/s 154 by the AO. The AO is also directed to dispose of the said application expeditiously within a period of three months.

In the result, the appeal of the assessee is treated as allowed for statistical purpose. Order Pronounced in the Open Court on 3rd April, 2019.