DIVYA RATHI,NEW DELHI vs. ITO, WARD- 29(5), NEW DELHI

For ready reference, it is reproduced hereunder: “2. On the facts and circumstances of the case, the Ld. CIT(A) has erred, both on facts and in law, in passing the order without giving assessee a proper and adequate opportunity of being heard in clear violation of principle of natural justice.”

The relevant facts of the case are that the assessee deriving income from salary and interest returned an income of Rs. 11,92,920/-. Addition of Rs. 4,80,000/- was made in the scrutiny proceedings resulting in the assessed income being concluded at Rs. 16,72,920/-. The issue was carried in appeal before the CIT(A), however, the appeal was dismissed as the assessee failed to make any submissions. The Ld. AR inviting attention to para 3.1 of the impugned order submitted that on each of the three dates the appeal was fixed for hearing the assessee was represented and time had been sought. On 24.07.2017, it was submitted that no hearing took place. For the next date, notice fixing the for hearing on 17.8.2017 was never received by the assessee. Accordingly, it was his limited prayer that the opportunity of being heard may be provided by setting aside the issue back to the file of the CIT(Appeals).

The Sr. DR on considering the same had no objection to the remand. She was required to address whether the remand be made to the AO or the CIT(Appeals). The Ld. Sr. DR considering the fact that no evidences were filed before the Assessing Officer submitted that it may be remanded to the AO as fresh evidences may need to be filed which would necessitate enquiries etc. The Ld. AR had no objection to the said request.

In the light of the submissions of the parties before the Bench which I find are supported by material available on record and also accepting the oral undertaking given by the Ld. AR that the assessee shall participate fairly, the impugned order is set aside back to the file of the Assessing Officer with a direction to pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard. While so directing it is hoped that the opportunity so provided is utilized by the assessee fully and fairly by making proper compliances. It is made clear that in the eventuality of abuse of the same the AO would be at liberty to pass an order on the basis of material available on record. Said order was pronounced in the open court at the time of hearing itself.

In the result, the appeal of the assessee is allowed for statistical purposes.