What did the Tribunal hold?

The Tribunal held that the CIT(A) erred in deciding the appeal ex parte without providing a reasonable opportunity to the assessee. In the interest of justice, the matter was set aside to the CIT(A) for fresh disposal.

The assessee's appeal before the CIT(A) was decided ex parte without a proper opportunity of being heard, as the last notice was allegedly not served. The CIT(A) confirmed the Assessing Officer's order without deciding the issues on merit.

What were the issues?

Whether the CIT(A) erred in passing an ex parte order without affording a reasonable opportunity of hearing to the assessee and without deciding the appeal on merits.

Vivek Barter Pvt.Ltd. vs ITO | ITAT Kolkata 2018

Income Tax Appellate Tribunal, KOLKATA BENCH “D” KOLKATA

Before: Shri N.V.Vasudevan & Shri Waseem Ahmed

O R D E R

PER Waseem Ahmed, Accountant Member:

- This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals)-2, Kolkata dated 06.12.2016. Assessment was framed by ITO Ward-5(4), Kolkata u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) vide his order dated 20.03.2015 for assessment year 2012-13. The grounds as raised by the assessee reads as under:- “1. For that the L. CIT(A) erred in deciding the appeal x parte without allowing the appellant any proper and reasonable opportunity of being heard and in fact the last notice issued for hearing on 1.12.2016 was never served on the appellant.

For that the order passed by the Ld. CIT(A) is bad in law since the ld. CIT(A) has not decided the issues ground-wise in respect of the grounds raised

by the appellant in the Memo of Appeal.

3. For that the Ld. CIT(A) is bad in law since the order passed is not any speaking order nor the CIT(A) has looked into the assessment records and relevant materials to conclude that the order of the Ld. AO cannot be interfered with.

Vivek Barter Pvt. Ltd. Vs. ITO Wd-5(4), Kol. Page 2 4. For that on the facts and in the circumstances of the case the order passed by the Ld. CIT(A) is not maintainable.

For that the order of the AO be modified and the assessee be given relief prayed for.

For that the assessee craves leave to add, alter or amend any ground before or at the time of hearing.” Shri Sunil Surana, Ld. Authorized Representative appeared on behalf of assessee and Shri Arindam Bhattacherjee, Ld. Departmental Representative appeared on behalf of Revenue.

2. At the outset, it was observed that the ld. CIT-A has passed the ex parte order confirming the order of the Assessing Officer without deciding the issue on merit. The ld. CIT(A) confirmed the order of the AO ex parte due to fact that the assessee failed to advance any arguments on merits and failed to attend the dates of hearings fixed by the ld. CIT(A) during the proceedings. Therefore the ex parte order was passed by the ld. CIT(A) vide order dated 06.12.2016.

It was further submitted in the grounds of appeal

that the impugned order was disposed of by the ld. CIT(A) without giving reasonable opportunity to the assessee. The ld. AR also submitted that the last notice issued fixing the hearing date on 01.12.2016 was not served upon the assessee. As such, it was pleaded before us by the ld. AR to provide one more opportunity and accordingly the matter should be set aside to the file of ld. CIT(A).

4. Per contra, it is the argument of Ld. DR for the Revenue that opportunities were given to assessee but he did not avail the same. Therefore the Ld. CIT(A) had no option but to dispose of the matter ex parte.

5. Be that as it may, it is clear from the record and looking at the absence of the assessee, Ld. CIT(A) concluded that the assessee has no interest to pursue the matter and to get it dispose of on merits. On perusal of the matter, it occurs to our mind that Ld. CIT(A) is motivated to dispose of the matter ex parte only because of his observation that the assessee failed to appear on the dates of hearings. In our considered opinion, it cannot be a ground to deny justice without giving reasonable opportunity to the party affected. It is because in the instant case the assessee also filed adjournment petitions before the Ld. CIT(A). The provisions of Section 250(6) of the Act require the

VIVEK BARTER PVT.LTD.,KOLKATA vs. ITO, WARD-5(4),KOLKATA, KOLKATA

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