ASST CIT CEN CIR 45, MUMBAI vs. D. KUMAR TRADING CO. P. LTD, MUMBAI

Brief facts are, the assessee a company is engaged in the business of trading in iron, steel and non–ferrous metals. On the basis of information received that certain income has escaped assessment, the Assessing Officer re–opened the assessment for the aforesaid assessment years and completed the assessment by making various additions. Being aggrieved, the assessee preferred appeal before the first appellate authority.

The learned Commissioner (Appeals) disposed off the appeals by deleting certain additions while sustaining some others. Being aggrieved with the orders passed by the learned Commissioner (Appeals), both, the assessee as well as the Revenue filed appeals before ITAT. In the course of hearing before the Tribunal, the basic grievance of the assessee was, the learned Commissioner (Appeals) has not properly considered the submissions of the assessee on certain issues, hence, it was contended by the assessee to restore the matters back to the file of the learned Commissioner (Appeals). The Department also challenging the deletion of certain additions by the learned Commissioner (Appeals), had submitted before the Tribunal that learned Commissioner (Appeals) had not given any opportunity to 3 M/s. D. Kumar Trading Co. Pvt. Ltd. the Assessing Officer to have his say on the issues. The Tribunal, after considering the grievance of both the parties, restored the matter back to the file of the learned Commissioner (Appeals) for deciding the issues afresh after hearing both the parties. The operative portion of the Tribunal’s order in to 3933/Mum./2011, dated 2nd April 2012, is reproduced hereunder:–

In consequence of the aforesaid order passed by the Tribunal, the learned Commissioner (Appeals) took up the appeals filed by the assessee and in the impugned orders have disposed off the appeal of the assessee.

When the appeals were called for hearing, no one appeared for the assessee. On a perusal of the order sheet entries, we have noticed that on earlier occasions also, assessee had not appeared. Therefore, the Bench directed issuance of hearing notice through RPAD as well as through the office of the Departmental Representative.

The learned Departmental Representative has submitted before us that the Assessing Officer though tried to serve the notices on the assessee, however, since he failed to find the assessee in spite of several attempts the notice was served by affixture. As could be seen from the material on record, the assessee has not cared to appear before the Tribunal in spite of several opportunities being granted to him. In fact, as per the submissions of the learned Departmental Representative, the assessee was not available in his last known address. In these circumstances, we have on other option but to proceed to dispose off the appeals ex–parte, qua the assessee after hearing the learned Departmental Representative.

The learned Departmental Representative submitted before us that in spite of the direction of the Tribunal to hear both the parties, the learned Commissioner (Appeals) has disposed off the appeal ex– parte without giving any opportunity to the Assessing Officer to have his say on the issues on which relief was granted to the assessee. On a perusal of the order of the learned Commissioner (Appeals), we find the aforesaid submissions of the learned Departmental Representative to be correct. As could be seen from the order of the Tribunal reproduced herein above, direction to the learned Commissioner (Appeals) was to dispose of the appeals after giving opportunity of hearing to both the parties and pass speaking orders. Whereas, it is 5 M/s. D. Kumar Trading Co. Pvt. Ltd. evident that the learned Commissioner (Appeals) has not carried out the aforesaid directions of the Tribunal. No opportunity has been given to the Assessing Officer to comment on the issues raised in appeals before disposing off the appeals of the assessee. Moreover, we have noted that the learned Commissioner (Appeals) has simply repeated the order of his predecessor–in–office which were set aside by the Tribunal. Considering the aforesaid facts, we are inclined to set aside the impugned orders of the learned Commissioner (Appeals) and restore the matters back to his file with a direction to dispose off the appeals in strict compliance to the directions contained in the order of the Tribunal as aforesaid. We make it clear if the assessee fails to appear before the learned Commissioner (Appeals), the learned Commissioner (Appeals) may dispose off the appeal after giving an opportunity to the Assessing Officer and on the basis of materials available on record by issuing a reasoned order.

In the result, appeals are allowed for statistical purposes. Order pronounced in the open Court on 21.12.2016