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Income Tax Appellate Tribunal, “D”, BENCH KOLKATA
Before: SHRI S.S.VISWANETHRA RAVI, JM &DR. A.L.SAINI, AM
आदेश / O R D E R Per Dr. A. L. Saini:
The captioned appeal filed by the assessee , pertaining to assessment year 2013-14, is directed against the order passed by the Commissioner of Income Tax (Appeal)-2 , Kolkata, which in turn arises out of an assessment order passed by the Assessing Officer u/s 143(3) of the Income Tax Act, 1961 (in short the ‘Act’) dated 24.03.2016.
2. At the outset itself, the ld. Counsel submitted before us, that during the appellate proceedings, following notices were issued for hearing in the matter. The details of these notices along with remarks are as under:
Bally Exports Pvt. Ltd. Assessment Year:2013-14 Date of Notice Date of hearing Remarks 26.04.2018 23.05.2018 The case was fixed for hearing today but none appeared nor was an adjournment petition filed on behalf of the assessee.
23.05.2018 08.06.2018 The AR of the appellant filed a letter dated 07.06.2018 for adjournment and case was adjourned for 12.07.2018 being last adjournment.
12.07.2018 The case was fixed for hearing today but none appeared nor was and adjournment petition filed on behalf of the assessee.
This appeal is fixed for hearing on 12.07.2018 instead of 17.07.2019. The assessee requested the ld. CIT(A) to adjourn the case on 17.07.2019 but ld. CIT(A) conducted the hearing on 12.07.2019 therefore at the time of hearing the assessee could not appear before the ld. CIT(A). Hence he could not plead his case properly. Hence the order being an ex-parte order, stood vitiated on account of violation of principle of natural justice. The ld. Counsel for the assessee contended that in the interest of justice, another opportunity to contest the appeal before the Ld. first appellate authority may be granted to the assessee.
The ld. Counsel for the assessee submitted that the assessee filed an Affidavit to prove the bona fide of his claim that sufficient opportunity of being heard had not given to him. The relevant portion is given below for ready reference: Page | 2 Bally Exports Pvt. Ltd. Assessment Year:2013-14 “1. That on 17.07.2018, the date fixed for hearing of Appeal no. 2/101042/2016- 17 for A.Y. 2013-14, I visited the office of commissioner of Income Tax(A)-2 to file the enclosed letter requiring for adjournment but the person concern asked me to come on 18.07.2018 and did not accept the letter.
That again 18.07.2018 I appeared before the said person along with the enclosed letter, but he did not accept the letter again and inform me that the order has been already passed on 16.07.2018.
3. That the above statements are true to my knowledge.”
We have heard both the parties and perused the material available on record. We note that the ld. CIT(A) did not communicate the date of adjournment. We also note that the ld. CIT(A) did not consider the assessment records and did not pass order on merits based on the documents available before him hence it is a violation of principle of natural justice. We note that the ld. CIT(A) failed to determine the obligations and rights of the assessee. We note that it is settled law that principles of natural justice and fair play require that the effected party is granted sufficient opportunity of being heard to contest his case. Hence we are of the view that one more opportunity should be given to assessee to plead his case before ld. CIT(A). Therefore, without delving much deeper into the merits of the case, in the interest of justice, we restore the matter back to the file of Ld. CIT(A) for de novo adjudication and pass a speaking order after affording sufficient opportunity of being heard to the assessee, who in turn, is also directed to contest his stand forthwith. Therefore, we deem it fit and proper to set aside the order of the ld. CIT(A) and remit the matter back to the file of the ld. CIT(A) to adjudicate the issue afresh on merits. For statistical purposes, the appeal of the assessee is allowed.
In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the Court on 29.03.2019