SRI.MOHANKUMAR GOWDA C ,CHAMARAJANAGARA vs. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-1(1), MYSORE

In course of hearing, it was pointed out by ld. AR of assessee that the impugned order of CIT(A) is ex-parte qua the assessee and she further pointed out that in the Form No. 35 filed before CIT(A), the assessee has provided address of the assessee’s advocate for serving the notice on the assessee but in fact, the notice was issued in the name of the assessee but the address given in the notice is that of the advocate of the assessee and because of this mismatch, the notice was not served on the assessee and ld. CIT(A) has passed the order ex-parte

We have considered the rival submissions. We find that in the Form No. 35, copy of which has been filed by assessee along with the appeal memo, the address for serving the notice on assessee was provided as No. 73, CISRS Building, Millers Road, Benson Town, Bangalore – 560 046 and the notice has been sent by the CIT(A) at this address only. Now the argument raised before us is this that this address is of the advocate of the assessee and therefore, the name of the advocate should have been mentioned in the address of the notice sent by CIT (A). Admittedly this was not done by CIT(A) but in the Form No. 35 also, the assessee has not mentioned the name of the advocate of the assessee of which the address is given by the assessee in Column 17 of Form No. 35. Be that as it may but this is the claim of the assessee that notice was not served on the assessee and as per Para 3 of the order of CIT(A) also, the notice has been returned back by postal department to CIT(A) with the postal remarks “no such person at this address”. Under this factual position, we feel it proper that the matter should be restored back to the file of CIT (A) for fresh decision after providing reasonable opportunity of being heard to both sides. Accordingly, we set aside the order of CIT(A) and restore the matter back to the file of CIT(A) for fresh decision after providing adequate opportunity of being heard to both sides. The notice of hearing should be sent by CIT(A) to the assessee as well as to the advocate of the assessee whose address is given in column 17 of Form No. 35 and the name of the advocate stated before us as Smt. Vani .H, Advocate.

In view of this decision, no adjudication is called for regarding the merit of the case at the present stage. Since the appeal of the assessee is being decided by this order, the stay petition has become infructuous and is liable to be dismissed as such. We dismiss the same.

In the result, the appeal filed by the assessee is allowed for statistical purposes and the stay petition filed by the assessee is dismissed. Order pronounced in the open court on the date mentioned on the caption page.