BIJOY CHOUDHARY,KOLKATA vs. ACIT, CIRCLE - 34, KOLKATA , KOLKATA

At the outset itself, the learned counsel for the assessee brought to our notice that an ex-parte order has been passed by the Ld. CIT(A) without hearing the AR of the assessee. It was also brought to our notice that the Ld. CIT(A) fixed the case for the first time on 09.08.2017 wherein the assessee had applied for adjournment, which was granted to it and the matter was fixed on 05.09.2017 wherein according to the learned AR, Shri Manish Bajoria, FCA (who is before us) claims to have appeared in the office of the CIT(A) on 05.09.2017. However according to him, the Ld. CIT(A) was not in the office and staff there told him that he was not present in the office. So he left the office of Ld. CIT(A). Thereafter according to the learned AR to his astonishment on 12.09.2017 after 7 days, the impugned ex-parte order was passed, therefore, he prayed that there was violation of gross natural A.Y. 2014-15 Bijoy Choudhary justice and so he prayed that the appeal may be restored back to the Ld. CIT(A) to be decided on merit.

The plea of the learned AR, to restore back to AO has been vehemently opposed by the learned DR and does not want us to interfere in the impugned order of Ld. CIT(A).

After having heard both the parties, we note that the Ld. CIT(A) having fixed the matter for the first time on 09.08.2017 on the request of the assessee adjourned it to 05.09.2017. However according to Ld. AR when he presented himself at the office of the Ld. CIT(A) on 05.09.2017, he was made to understand that CIT(A) was not present in the office, so he left. Later to his astonishment he came to know that CIT(A) had decided the appeal ex-parte observing that none appeared on behalf of the assessee. According to the learned AR, he had in fact appeared and was present in the office of the Ld. CIT(A) on 05.09.2017. These facts are corroborated by a perusal of the impugned order. We note that impugned order has been passed by Ld. CIT(A) on 12th September, 2017wherein the aforesaid events we discern. Since the impugned order is an ex-parte order passed without hearing the learned AR of the assessee, the order is fragile for violation of natural justice. Therefore we are inclined to set aside the order of the Ld. CIT(A) and remand the matter back to the file of the Ld. CIT(A)and direct him to decide the appeal afresh after hearing the assessee in accordance with law.

In the result, the appeal of the assessee is allowed for statistical purposes.