M/S SHIV GANGA DISTRIBUTORS PVT. LIMITED,KOLKATA vs. JCIT- RANGE -1, KOLKATA, KOLKATA

- This appeal filed by the assessee against the order of Commissioner of Income Tax (Appeals)-1, Kolkata for the assessment year 2011-12 in the matter of order passed u/s 143(3) dated 14.06.2016 Shri Somdutta Samaddar, Ld. Advocate appeared on behalf of assessee and Shri Arindam Bhattacherjeee, Ld. Departmental Representative appeared on behalf of Revenue.

At the outset, it was observed that Ld. CIT(A) has passed ex parte order on the ground that assessee failed to appear on the dates of hearing i.e. 20.5.2016 and 13.6.2016 and conceded that the assessee is not interested in pursuing its appeal.

At the outset it is seen that the order of Ld.CIT(A) is ex parte order and nothing is decided on merits, even though it is ex parte. Can the Ld. CIT(A) pass an ex parte order without speaking on merits? We are of the view that M/s Shiv Ganga Distributors Pvt. Ltd. vs. JCIT,Rng-1, Kol Page 2 Section 250(2) of the Act grants the assessee as well as the AO a right to be heard by the first appellate authority. The Appellate Authority has a legal duty to hear and dispose of the appeal. Even no dismissal for default can be made but appeal is to be decided on merits. Where an appeal is to be disposed of, even though on merits after taking relevant facts into consideration, without giving a notice of hearing to the assessee, an application for setting aside of ex parte order is maintainable. Accordingly, we are of the considered view that this order needs to be set aside and remand the appeal back to the file of Ld.CIT(A) for fresh adjudication after providing reasonable opportunity of being heard to the assessee. Needless to say, that the Ld.CIT(A) will pass a speaking order on merits. The assessee is also directed to appear before the ld. CIT(A) and extend full cooperation in the proceedings.