JANAKI SUPPLIERS PVT. LTD., ,KOLKATA vs. ITO, WARD - 13(2), KOLKATA , KOLKATA

1. This is an appeal preferred by the assessee against the order of Ld. CIT(A)-5, Kolkata dated 26.10.2016 for AY 2012-13.

At the outset, ld. AR of the assessee drew our attention to the fact that the order passed by the Ld. CIT(A) is an ex parte order because notice was not addressed properly so the notice had returned back to the Ld. CIT(A)’s office. It was also brought to our notice that the AO has also passed the ex parte assessment order u/s. 144 of the Income-tax Act, 1961 (hereinafter referred to as the “Act”) for the same reason that notices were not served on the assessee. Therefore, according to Ld. AR, no proper opportunity was given to the assessee before the AO while assessment was framed. The Ld. DR opposed any remanding back to either of the authorities below. According to him, the assessee should have been vigilant and the law does not help the person who sleeps over his rights. 3. We have heard rival submissions and gone through the facts and circumstances of the case. We note that the order of the Ld. CIT(A) is an ex parte order and he has acknowledged that the notice fixing the date of hearing has returned back by the postal authorities. Thus, we note that the assessee has not been put on notice before the impugned order has been passed. We also note that the AO has passed the order u/s. 144 of the best Janaki Suppliers Pvt. Ltd, AY- 2012-13 judgment assessment and the Ld. AR pointed out that no notices were served upon the assessee so the assessee could not effectively participate during the assessment proceedings. In the aforesaid circumstances, we are of the opinion that since the assessee did not get proper opportunity before the AO, the assessee should be given an opportunity before the AO to place its case. Hence, we set aside the orders of the lower authorities and restore the matter back to the file of AO to adjudicate afresh after affording adequate opportunity of being heard to the assessee. In this regard we rely on the order of the Hon’ble Supreme Court in the case of Tin Box Company Vs. CIT (2001) 249 ITR 216 (SC), wherein the Hon’ble Supreme Court has held as under: