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Income Tax Appellate Tribunal, KOLKATA BENCH “B” KOLKATA
Before: Hon’ble Shri Waseem Ahmed & Shri S.S.Viswanethra Ravi
आदेश /O R D E R Per Waseem Ahmed, AM By way of this Stay Petition the assessee has requested for a stay of recovery of demand for Rs. 1,34,90,920/- only.
At the outset, it was observed the ld. CIT(A) has decided the appeal of the assessee ex parte on the ground that the assessee failed to appear on the date of the hearing despite the fact that notices for hearing were served upon the assessee.
The ld. AR before us submitted that the adjournment petition was filed before the ld. CIT(A) vide application dated 11.01.2016 but the ld. CIT-A failed to consider the same and confirmed the order of AO vide order dated 14-01-2016.
The ld. AR before us prayed to restore the matter to the file of the ld. CIT(A) and consented for the rejection of stay petition.
On the other hand, the ld. DR did not raise any objection if the matter is restored back to the file of the ld. CIT(A) for fresh adjudication in accordance with law and stay petition gets rejected.
At the threshold, we find that both the parties before us agreed for the rejection of stay petition and consented to argue the matter/appeal on merit. In view of this we reject the stay petition and proceed to hear the appeal on merits.
In the result, assessee’s Stay Application is dismissed.
We have heard the rival contentions and perused the materials available on record. At the outset, we find that the ld. CIT(A) has fixed the case for hearing on several occasions. But no compliance was made by the assessee. Therefore, the appeal was decided ex-parte. However, from the grounds of appeal
raised by the assessee we find that an adjournment petition was filed vide dated 11.01.2016 which has not been considered by the ld. CIT(A). As such we find that the impugned order of the ld. CIT(A) has been passed without giving opportunity to the assessee.
8. The provision of section 250(6) of the Act requires the commissioner to dispose off the grounds raised by the assessee in the appeal in writing. But we find from the order of the ld. CIT(A) that the issue raised by the assessee have not been decided on merit. In our considered view and in the interest of justice and fair play we feel that the ld. CIT(A) should have given another opportunity to the assessee to appear before him to explain his point of contentions. Therefore in this view of matter we are inclined to remit the issue to the file of the ld. CIT(A) with the direction to decide the issue raised by the assessee on merit in accordance with law. It is needless to mention that the assessee should cooperate in the appellate proceedings as and when the matter is fixed for hearing. Hence, the Stay Application of the assessee stands rejected and the grounds of assessee’s appeal stand allowed for statistical purposes.
9. In combine result, Stay Application of assessee stands dismissed and that of assessee’s appeal is treated as allowed for statistical purpose. Order pronounced in the open court on 11/10/2017