What did the Tribunal hold?

The ITAT held that the CIT(A)'s order was not in accordance with law as it failed to fulfill the mandatory requirements of Section 250(6) of the Income Tax Act. The tribunal also found that sufficient opportunity was not granted to the assessee.

The assessee's appeal before the CIT(A) was dismissed for non-appearance on two hearing dates. The assessee's counsel claimed to be suffering from typhoid, leading to the inability to attend.

What were the issues?

Whether the CIT(A) erred in dismissing the appeal without granting sufficient opportunity to the assessee, and if the order passed was a speaking order as required by law.

Sh. Gopal Varshney, New Delhi vs ITO | ITAT Delhi 2017

Income Tax Appellate Tribunal, DELHI BENCH: ‘SMC-II’ NEW DELHI

Before: SMT DIVA SINGH

Hearing: 10.11.2016Pronounced: 12.01.2017

The present appeal has been filed by the assessee assailing the correctness of the order dated 16.10.2014 of CIT(A), Meerut pertaining to 2010–11 assessment year on various grounds. However, at the time of hearing the parties were heard only in respect of Ground No. 2, the same reads as under:-

“That Ld.CIT(A) had erred, both in law as well as in facts of the case in holding that “Since sufficient opportunity of being heard have been given to the appellant, no further adjournment can be granted. Therefore, the appeal is disposed off on the basis of material on record.” “It is held that the AO was justified in making the additions. The same are hereby confirmed Grounds of appeal are dismissed.”

2. Addressing the reasons for non-appearance before the CIT(A) on 03.09.2014 and 16.10.2014 the two dates on which the hearing was stated to have been fixed, it was submitted by the Ld. AR that he is instructed that the counsel appearing on behalf of the assessee was suffering from Typhoid as result of which on these two dates, the assessee could not be represented. It was submitted that for this specific reason, adjournments had been sought.

The conclusion of the CIT(A) that more than sufficient opportunity in the circumstances, has been given, it was submitted is an incorrect conclusion in law and it was his prayer that the opportunity of being heard, may be granted to the assessee for which purposes, the impugned order may be set-aside.

2.1. Considering the facts and the arguments advanced the said prayer of the Ld. AR was not objected to by the Ld. Sr.DR

I have heard the rival submissions and considered the submissions of the parties before the Bench. I find on considering the impugned order, it cannot be said to be an order in accordance with law as the mandatory statutory requirements of sub-section (6) of section 250 of the Income Tax Act, 1961 has not been fulfilled. The statute requires that “The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision.” The said requirement is found to be not fulfilled. Even otherwise considering the oral prayer of the assessee in the circumstances where two opportunities had been sought on the grounds of the counsel’s medical reason it cannot be said that more than sufficient opportunity had been granted to the assessee. Accordingly, in view of these patent and obvious shortcomings, the impugned order is set-aside and the issues are restored back to the file of the CIT(A) with a direction to pass a speaking order in accordance with law after giving the assessee a reasonable and effective opportunity of being heard.

In the result, the appeal of the assessee is allowed for statistical purposes. The order is pronounced in the open court on 12th of January, 2017.

SH. GOPAL VARSHNEY,NEW DELHI vs. ITO, BULANDSHAHR

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