MAGMA INDUSTRIES,MUMBAI vs. ITO - 25(2)(2) NOW ITO 32(2)(3), MUMBAI

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ITA 5291/MUM/2016Status: DisposedITAT Mumbai15 May 2017AY 2010-113 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal held that the ex-parte order passed by the CIT(A) was bad in law as the non-attendance was due to circumstances beyond the assessee's control. The CIT(A) did not adjudicate on the grounds of appeal.

What were the facts?

The assessee's appeal before the CIT(A) was dismissed ex-parte. The assessee contended that they had attended hearings and provided evidence, but the CIT(A) passed the order due to non-attendance on one occasion when the AR was suffering from high fever.

What were the issues?

Whether the ex-parte order passed by the CIT(A) was justified when the assessee's non-attendance was due to unavoidable circumstances and the grounds of appeal were not adjudicated.

Which sections of the Income-tax Act were involved?

None

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “SMC”, BENCH MUMBAI

Before: SHRI R.C.SHARMA, AM

For Appellant: Shri S.C.Patni
For Respondent: Shri A.K.Kardam
Hearing: 09/05/2017Pronounced: 09/05/2017

आदेश / O R D E R PER R.C.SHARMA (A.M):

1.

This is an appeal filed by the assessee against the ex-parte order of CIT(A)-44, Mumbai dated 21/06/2016 for the A.Y.2010-11 in the matter of order passed u/s.2010-11.

2.

It was argued by learned AR that the learned Commissioner of Income Tax, Appeals - 44, Mumbai erred in passing the ex-parte order by holding that assessee has not attended the hearings before him which is absolutely incorrect as there are enough documentary evidences available with the assessee and also as per order sheet entries before the learned CIT(A), that the assessee has attended hearings on 24/05/2016 and on 10/06/2016 but as the learned CIT(A) was busy, the case was M/s. Magma Industriews adjourned to 17/06/2016 and the notice of first hearing on 21/04/2016 was received on same day.

3.

Learned AR has drawn our attention to the adjournment petition filed before the CIT(A) on 10/06/2016 requesting that since he was suffering from high fever, adjournment should be granted. However, the CIT(A) did not agree for any adjournment and passed ex-parte order.

4.

On the other hand, learned DR supported the order of the lower authorities.

5.

I have considered rival contentions and found from record that the learned Commissioner of Income Tax, Appeals - 44, Mumbai has passed the order ex-parte despite the fact that the notice of first hearing was received on the date of hearing itself i.e. 21/04/2016 so the hearing was adjourned to 24/05/2016. On 24/05/2016, the learned CIT(A) was busy and the hearing was adjourned from his end to 10/06/2016. On 10/06/2016, the assessee's AR was suffering from high fever. A letter stating this fact was filed on 10106/2016 and hearing was adjourned to 17/06/2016. The assessee’s AR could not recover from his high fever before 17/06/2016 and therefore could not attend the hearing on 17/06/2016. After getting well, the AR attended the office of learned CIT (A) on 20/06/2016 but he was informed that the order has been passed ex-parte. The said ex-parte order is bad in law as the circumstances in which the non attendance resulted were beyond the control of the assessee.

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