What did the Tribunal hold?

The Tribunal held that the CIT(A) should have provided a reasonable opportunity to the assessee to present their case, even if they failed to appear on earlier dates. Denying justice without a proper hearing is not permissible.

The assessee's appeal before the CIT(A) was decided ex parte as the assessee failed to appear on multiple hearing dates. The assessee contended that they were not given sufficient opportunity to present their case.

What were the issues?

Whether the CIT(A) erred in passing an ex parte order without affording sufficient opportunity of being heard to the assessee.

M/S Sao Finance & Properties (P)… vs DCIT | 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)-1, Kolkata dated 05.12.2016. Assessment was framed by DCIT, Circle-2(2), Kolkata u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) vide his order dated 21.03.2015 for assessment year 2012-13. The grounds as raised by the assessee reads as under:- “1. For that the Ld. CIT(Appeals) erred in passing order by not giving sufficient opportunity to appear and advocate the case.

For the Ld. CIT(Appeals)order should be remanded again for hearings your assessee plea on the basis of natural justice.

For that the Ld. CIT(Appeals) erred in keeping the addition of unsecured loan of R.1,54,00,000/- and interest of Rs.1,14,554/- on unsecured loan to the total income of the assessee added back by the Ld. AO on arbitrary basis.

For that the Ld. CIT(Appeals) erred in keeping the addition of Rs.31,83,743/- u/s/. 14A read with Rule 8D of the Income Tax Act, 1961.

M/s Sao Finance & Properties (P) Ltd. Vs. DCIT Cir-2(2) Kol. Page 2 5. That the appellant craves leave to add, later or delete all or any of the grounds of appeal

.” Vineet Singh, Ld. Authorized Representative appeared on behalf of assessee and Shri Arindam Bhattacherjee, Ld. Departmental Representative appeared on behalf of Revenue.

2. The assessee filed an adjournment petition dated 26-02-2018 on the premise of preparation & filing of paper book. However, 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 appellate proceedings. Therefore, the impugned ex parte order was passed by the ld. CIT(A) vide order dated 05.12.2016. In view of above, we rejected the adjournment petition filed by the assessee and decided to proceed to hear the case on the basis of materials available on record.

3. 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 of being heard to assessee and as such, it was pleaded before us in the grounds of appeal to provide one more opportunity and accordingly the matter should be set aside to the 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

M/S SAO FINANCE & PROPERTIES (P) LTD.,KOLKATA vs. DCIT, CIR-2(2)KOL., KOLKATA

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