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Income Tax Appellate Tribunal, “A”, BENCH KOLKATA
Before: SHRI A. T. VARKEY, JM & DR. A.L. SAINI, AM
आदेश / O R D E R Per Dr. A. L. Saini, AM:
The captioned appeal filed by the assessee, pertaining to Assessment Year 2012-13, is directed against the order passed by ld. Commissioner of Income Tax (Appeals)-1, Kolkata in Appeal No.1407/CIT(A)-1/Wd-2(3)/2015-16, dated 06.10.2016, which in turn arises out of an assessment order passed by the Assessing Officer u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the ‘Act’), dated 27.03.2015.
At the outset itself, the ld. Counsel for the assessee assailed the impugned order by contending that the assessee could not represent his case before Ld. CIT(A) and the order being an ex-parte order, stood vitiated on account of violation of principle of natural justice. The ld counsel stated before us that Mr. T.K. Kejrival ( FCA) who used to look the assessee`s appeal matters, was unable to appear before Ld CIT(A) on 28.09.2016, as he was suffering from fever. As the circumstances were beyond the control of the assessee, therefore, the ld. Counsel contended that in the interest of justice, another opportunity to contest the appeal before the first appellate authority may be granted to the assessee. The ld. DR for the Revenue refrained from objecting the stand of the ld. Counsel.
Iris Vintrade Pvt. Ltd Assessment Year: 2012-13 4. We note that ld. CIT(A) has passed the ex parte order observing the following:
“The hearing in this case was initially fixed on 31.08.2016 on the appointed date the A.R of the appellant had attended and adjourned the case for 07.09.2016, but on that date none had attended. The case was again fixed on 28.09.2016. But on that date appellant neither attended nor filed any adjournment letter. Under the circumstances, it appears that the appellant does not want to pursue this appeal, therefore, I have no option but to decide the appeal on merits on the basis of material available on record………. In the instant case, the appellant has not able to show that the decision of the A.O was arbitrary, biased, irrational, vindictive or capricious without any basis. I find no reason to interfere with the decision of the A.O. In the result, appeal filed by the appellant is dismissed.”
After going through the above decision of the ld CIT(A), it is abundantly clear that assessee has participated in the appellate proceedings on 31.08.2016 and filed adjournment letter and the case was adjourned on 07.09.2016. Later, the case was fixed on 28.09.2016 but non-compliance was made on the part of the assessee because of the reason, Mr. T.K. Kejriwal (FCA), who used to look the appeal matters of the assessee was feeling serious illness during the appellate proceedings and to substantiate this, the assessee has submitted before us an affidavit. The para 4 of the said affidavit reads as under:
“4.That Mr. T.K. Kejriwal (FCA), who was engaged in the instant case, was unable to appear before the ld CIT(A) on 28.09.2016 as he was suffering from fever.”
Therefore, it seems to us that ld CIT(A) ought to have given more opportunity to the assessee to defend his case, hence we consider it violation of principle of natural justice, as sufficient opportunity of being heard was not given to the assessee.
We note that in the assessee’s case under consideration, the assessment was carried out u/s 143(3) of the Act and the impugned order passed by the ld. CIT(A) is an ex parte order, therefore, we do not wish to make any comments on the merits of the grounds raised by the assessee.
Iris Vintrade Pvt. Ltd Assessment Year: 2012-13 6. We note that a perusal of the body of the impugned order, it is apparent that it is an ex parte order which has been challenged by the assessee for want of proper opportunity. We are of the view that one more opportunity should be given to the assessee to plead his case before the 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 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 deed 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 treated as allowed.
In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open court on this 25/07/2018.
Sd/- Sd/- (A. T. Varkey) (A. L. Saini) �या�यक सद�य / JUDICIAL MEMBER लेखा सद�य / ACCOUNTANT MEMBER कोलकाता /Kolkata; Pronounced on 25/7/2018 Dated : 25./07/2018 Sd/- RS, Sr. PS Satbeer Singh Godara (JM) आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant- Iris Vintrade Pvt. Ltd 2. ��यथ� / The Respondent.- ITO, Ward-2(3), Kolkata 3. आयकर आयु त(अपील) / The CIT(A), 4. आयकर आयु त / CIT !वभागीय �$त$न%ध, आयकर अपील�य अ%धकरण, कोलकाता / DR, ITAT, Kolkata 5. 6. गाड( फाईल / Guard file.