ARUN JOSHI,THANE vs. DCIT CEN CIR 12, MUMBAI

The Ld. Representative for the assessee contends that this is the second round of appealate proceedings. Vide order dated 29/06/2012, in the assessment was set-aside and restored back to the file of Assessing Officer to conduct various enquiries and record cross- examination of the concerned persons of M/s.DPS Shares & Securities Pvt. Ltd.

During the course of fresh proceedings, the Assessing Officer did not give the cross examination as directed by ITAT and confirmed the additions.

Aggrieved, assessee preferred the first appeal, wherein non-allowing of cross examination of witness was agitated before ld. CIT(A). However it was not considered and further ld. CIT(A) confirmed the additions by passing the impugned order on ex-parte basis.

The Ld. counsel Shri Jeetendra Singh contends that the assessee has been responding in the appellate proceedings and adjournment letters were filed. Besides, ld. CIT(A) did not proceed in the direction of giving cross examination as directed by ITAT and not complied by ld. AO. On the last date of hearing counsel had to suddenly go out of station and nobody could attend before the CIT(A), consequently, taking an adverse view, an ex-parte order was passed. In these facts and circumstances, counsel apologised for not properly intimating the ld. CIT(A) for non-appearance. It is a settled law that for the default of the Counsel, the assessee should not suffer. In this matter it is contended that:- (i) a reasonable cost may be imposed; (ii) The ITAT gave specific direction to allow cross examination to the assessee, which was not given in both original as well as in the second round of proceedings. Therefore, the principles of natural justice remain uncomplied with.

The Ld. Departmental Representative supports the order of the authorities below and contended that assessee has been a habitual defaulter in not complying with the requirements called for by the ld./s Assessing Officer and CIT(A). The question of cross examination become relevant only after the assessee files relevant information as called for. This, this plea is being repeatedly taken to avoid scrutiny of the facts. Therefore, the ex-parte order has rightly been passed and the addition made by the CIT(A) deserve to be confirmed.

I have carefully heard the rival submissions and perused the material on record. As the facts emerges, the Ld. Representative for the assessee has apologised for his un-professional conduct in not informing the ld. CIT(A) properly about a reasonable cause and failed to request the adjournment. It is a settled law that for the default of the Counsel, assessee should not suffer. However, due to these issues the proceedings are being proliferated. Further, ITAT directed to accord cross examination of the witnesses as mentioned in the ITAT order(supra). The assessee has been taking the ground repeatedly, therefore, to this extent, the principle of natural justice remain to be complied with. Under these facts and circumstances, I am inclined to set- aside the ex-parte order passed by the CIT(A) to his file with following observations:

In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 01/02/2017