What did the Tribunal hold?

The Tribunal held that the assessee did not have a proper opportunity to be heard before the CIT(A). Therefore, the ex-parte order of the CIT(A) was set aside and the matter was remanded to the AO for fresh consideration.

The assessee's appeal before the CIT(A) was dismissed ex-parte as notices were not served due to a change in address that was not intimated. The assessee had shifted its business premises and the CIT(A) proceeded without the assessee's appearance or submissions.

What were the issues?

Whether an ex-parte order passed by the CIT(A) without proper service of notice and opportunity of hearing to the assessee is sustainable. Whether the matter should be remanded to the AO for fresh adjudication.

Atmaram Tantta HUF vs ITO | ITAT Kolkata 2017

Income Tax Appellate Tribunal, “A” BENCH : KOLKATA

Before: Hon’ble Sri N.V.Vasudevan, JM & Dr.Arjun Lal Saini, AM]

ORDER

Per N.V.Vasudevan, JM

This is an appeal by the Assessee against the order dated 22.08.2016 of C.I.T(A)- 13, Kolkata relating to A.Y.2013-14.

The Assessee is a HUF. It carries on business as manufacturer and trader of hosiery goods. For A.Y.2013-14 the assessee filed return of income on 29.09.2013 disclosing total income of Rs.12,63,390/-. An order of assessment was passed by the AO u/s 143(3) of the Income Tax Act, 1961 (Act) determining the total income of the assessee at a sum of Rs.41,93,590/-. Aggrieved by the various additons to the total income made by the AO in the order of assessment, the assessee preferred appeal before CIT(A). The CIT(A) vide order dated 22.08.2016 confirmed the order of AO and dismissed the appeal of the assessee. 3. A perusal of CIT(A)’s order shows that he has decided the appeal ex-parte. Order of CIT(A) mentions that notice u/s 250 of the Act was served and none appeared on behalf of the assessee. In page-18 of the CIT(A)’s order it has been mentioned that notices dted 30.05.2016, 05-07.2016, 28.07.2016 and 10.08.2016 were issued. The order of CIT(A) also mentions that none of the notices were served on the assessee and Atmaram Tantiya (HUF). A.Yr.2013-14 no new address is available. Thus it is clear that none of the notices of hearing was served on the assessee. 4. Before us the ld. Counsel for the assessee filed the following revised 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 the Ld. CIT (A) ought to have taken into consideration the Income Tax records and on the issue of additionsl disallowances the appellant's submissions and evidences filed in the course of hearing for assessment ought to have been taken into consideration.

3. For that the exparte order of the Ld. CIT (A) may kindly be remitted back to the A.O. for reconsideration of the issues involved in this appeal and the appellant submits that it would make appearances before the A.O. to explain all the related matters for fresh assessment.

For that further grounds of appeal may kindly be allowed to be taken at the time of hearing of the appeal.”

5. The assessee has also filed an affidavit before the Tribunal wherein it has been pointed out that the assessee had shifted his business which was earlier carried out on 190, Jamunlal Bajaj Street, Kolkata to a new place of business namely 18/1A, Nilmoni Mitra Street, Kolkata-700006 some time in the year 2015 and due to inadvertence the change of address was not intimated to CIT(A).

6. We are of the view that the assessee did not have proper opportunity of being heard before CIT(A) and exparte parte order of CIT(A) dismissing the appeal of the assessee has to be set aside. The ld. Counsel for the assessee also pointed out that order of CIT(A) may be set aside and the issues raised before CIT(A) be remanded to the AO for fresh consideration. It has been submitted that at the assessment stage the assessee could not produce any proper evidence regarding payment of commission. Therefore the AO disallowed the commission expenses. It has also been submitted that the recipients of the commission are now willing to appear before AO and it would be in 2

Atmaram Tantiya (HUF). A.Yr.2013-14 the interest of justice that the matter should be remanded to the AO. The ld. DR did not object to the prayer made by the ld. Counsel for the assessee. 7. We accept the prayer of the assessee and set aside the order of CIT(A) and remand the various issues raised by the assessee in the grounds of appeal before CIT(A) for fresh consideration by the AO with a liberty to the assessee to prove his case by producing sufficient evidence/material to the satisfaction of the AO. For statistical purposes the appeal of the assessee is allowed.

8. In the result the appeal of the assessee is allowed for statistical purposes. Order pronounced in the Court on 18.08.2017.

ATMARAM TANTTA HUF,KOLKATA vs. ITO, WARD 43(1), KOLKATA, KOLKATA

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