What did the Tribunal hold?

The Tribunal found that the CIT(A) had passed an ex-parte order without giving the assessee a proper opportunity to be heard, violating principles of natural justice. Therefore, the order of the CIT(A) was set aside.

The assessee's appeal before the CIT(A) was dismissed for non-prosecution as the assessee failed to appear despite several opportunities. The assessee claimed that some notices were not served and sought adjournment due to counsel's unavailability and hospitalization.

What were the issues?

Whether the CIT(A) was justified in dismissing the appeal for non-prosecution without providing sufficient opportunity to the assessee to be heard, and whether principles of natural justice were violated.

Shri Sanjay Kapoor, Kanpur vs ACIT | ITAT Lucknow 2022

Income Tax Appellate Tribunal, LUCKNOW BENCH ‘A’, LUCKNOW

Before: SHRI A. D. JAIN & SHRI T. S. KAPOOR

For Appellant: Shri Pradeep Seth, CA

For Respondent: Shri Harish Gidwani, D.R

Hearing: 29/08/2022Pronounced: 30/08/2022

O R D E R PER T. S. KAPOOR, A.M. This appeal has been filed by the assessee against the order of learned CIT(A)-1, Kanpur dated 23/09/2019 pertaining to assessment year 2014-15. By virtue of the impugned order, the ld. CIT(A) has dismissed 2. the assessee’s appeal for non prosecution, observing that several opportunities have been allowed to the assessee, but no compliance has been made by the assessee. The ld. AR at the outset submitted that in fact it is correct that ld. CIT(A) had issued various notices, a few of which were not served upon the assessee and on few occasions the assessee had sought adjournments. It was submitted that ld. CIT(A) ultimately fixed the date of hearing for 9.9.2019 against which the assessee again filed adjournment application on dated 5.9.2019 requesting therein that the Assessment Year:2014-15 2 hearing be adjourned to 8.10.2019 as the counsel of the assessee was busy in preparing tax audit reports and further he was hospitalized for brain surgery. It was submitted that adjournment sought by the assessee vide letter dated 5.2.2019 was necessitated by the reasons beyond the control of the assessee, therefore, it was prayed that one more opportunity may be given to the assessee so that the merits of the case could be explained before ld. CIT(A).

The ld. DR on the other hand, invited our attention to the order of ld. CIT(A) where he has noted down number of opportunities given by ld. CIT(A) to the assessee and therefore it was prayed that request of assessee for further opportunity is not justified.

We have heard the rival parties and have gone through the material placed on record. We noted that learned CIT(A) has passed ex-parte order as according to him, nobody has appeared on the dates when the appeal was fixed for hearing before him. From the order of CIT(A), it is apparent that the CIT(A) had issued various notices to the assessee however, neither anybody appeared nor filed written submissions and ultimately the CIT(A) passed the ex-parte order. The last date fixed for hearing was 9.9.2019 and on 5.9.2019 the assessee filed an application before Assessing Officer requesting him to adjourn the case to 8.10.2019 as the counsel of the assessee was busy in filing in income tax returns and was also busy in finalizing tax audit report but the ld. CIT(A) rejected the adjournment application and decided the case on merits. We find that the assessee has not utilized the opportunities to explain his case before the ld. CIT(A) in spite of the fact that ld. CIT(A) gave him sufficient opportunities. We further find that the assessee did not file any submissions on merits of the additions therefore, we feel that one more opportunity should be given to the assessee. The provisions of section 250 which deals with the procedure in appeal before the CIT(A), allows a right to an assessee to be heard at the time of hearing of appeal. Even the natural justice demands that no appeal should be disposed of without being heard the party or without giving him the proper and sufficient opportunity. We, therefore, in the interest of justice and fair play to both the parties, set aside the order of CIT(A) and restore the appeal to the file of the CIT(A) with the direction that the CIT(A) shall refix the said appeal and decide the appeal afresh after giving proper and sufficient opportunity of being heard to the assessee. The assessee is also directed to be present on the date of hearing fixed by learned CIT(A) and not seek undue adjournment and co-operate with learned CIT(A) in disposing of the appeal.

In the result, the appeal filed by the assessee is allowed for statistical purposes. (Order pronounced in the open court on 30/08/2022) Sd/- Sd/- ( A. D. JAIN ) ( T. S. KAPOOR ) Vice President Accountant Member Dated: 30/08/2022 Aks/- Copy of the order forwarded to :

1. 1. The Appellant 2. The Respondent.

3. Concerned CIT 4. The CIT(A) 5. D.R., I.T.A.T., Lucknow

SHRI SANJAY KAPOOR,KANPUR vs. ASSISTANT COMMISSIONER OF INCOME TAX-1, KANPUR

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