SHIVAM HIRE PURCHASE & FINVEST PVT. LTD.,KOLKATA vs. ITO, WARD - 5(1), KOLKATA, KOLKATA

This is an appeal filed by the Assessee praying for an order of stay of recovery of outstanding demand of Rs. 1,35,35,590/-. When the stay application came up for hearing it was noticed by the Bench that the order of CIT(A) is an exparte order and the assessee’s main grievance in the appeal is that CIT(A) did not afford any opportunity of being heard to the assessee before passing the impugned order. We therefore proposed that the appeal itself can be decided instead of deciding the stay application. With the consent of the parties the appeal was taken up for hearing.

4. The CIT(A) after receipt of this letter without giving any notice to the assessee dismissed the appeal of the assessee upholding the order of AO. According to the CIT(A) there was no provision under the Act for withdrawing the appeal filed before CIT(A). CIT(A) further noticed that the assessee did not file any written arguments against the finding of the AO. In the absence of any material CIT(A) concluded that there is no infirmity in the order of AO and dismissed the appeal of the assessee.

5. Aggrieved by the order of CIT(A) the assessee preferred the present appeal before the Tribunal raising the following grounds of appeal : 1.For that the Ld. CIT (A) erred in dismissing the appeal of the appellant on the alleged grounds.

2.For that there was no reasonable opportunity of hearing given by the Ld. CIT (A) to the appellant with reference to the Grounds of Appeal taken by the appellant for adjudication.

3. For that even though the Ld. CIT CA) did not allow withdrawal of the appeal as requested by the appellant, the appellant ought to have been informed about SA No.126/Kol/2017 & Shivam Hire Purchase & Finvest (P)Ltd. A.Y.2014-15 3

the same and an opportunity ought to have been given to the appellant to piece arguments and contentions on the issues involved in appeal.

there was no opportunity of being heard afforded to the assessee by CIT(A) before dismissing the appeal of the assessee. CIT(A) ought to have informed the assessee that there is no provision in the act and therefore the assessee’s request for withdrawal of appeal cannot be acceded to. CIT(A) ought to have fixed the appeal for hearing and called upon the assessee to put forth his case against the order of AO because CIT(A) was of the view that the appeal once filed cannot be withdrawn. In our view therefore order of CIT(A) deserves to be set aside and here by set aside. CIT(A) is directed to give opportunity of being heard to the assessee on the grounds raised by the assessee before CIT(A). The assessee shall put forth its grievances before CIT(A), who shall decide the same in accordance with law after affording opportunity of being heard to the assessee. For statistical purpose the appeal of the assessee is treated as allowed.

7. In view of the decision on merits of the appeal we are of the view that the Stay Application is infructuous and the same is dismissed as infructuous.

8. In the result the appeal by the assesee is allowed for statistical purposes and the Stay Application by the assessee is dismissed. Order pronounced in the Court on 01.12.2017.