SHYAMAL DUTTA,BURDWAN vs. ITO, WD 1(3), BURDWAN, BURDWAN

The only issue is to be decided in this appeal as to whether the CIT-A is justified in passing ex parte order without affording adequate opportunity of hearing to the assessee in the facts and circumstances of the case.

The assessee is an individual and filed return of income declaring total income at Rs.99,162/-. Under scrutiny, notices u/s. 143(2) and 142(1) of the Act were filed. In response to which the requisite documents and books of account were filed before the AO. Basing on which, the AO determined the total income at Rs.4,33,060/- and to that effect an order Shyamal Dutta 1 u/s. 143(3) of the Act was passed on 30-12-09 by making various additions/disallowances.

Against which the assessee preferred an appeal before the CIT-A. According to CIT-A notice intimating the date of hearing was issued on 18-09-2013 and for non compliance of the same further notices were issued on 19-11-2013, 17-12-2015 and 08-02-2016. But no one appeared representing the assessee to prosecute the case. In view of the same, the CIT-A following the decision of the Hon’ble Supreme Court in the case of H.M Esufali H.M Abdulali (1973) 90 ITR 271 dismissed the appeal of assessee by passing an ex parte order.

Before us the ld. AR submits that the Counsel of the assessee who was appointed by the assessee to appear before the CIT-A is aged about 80 years and was advised bed rest for 4 months due to his illness. Thus, he could not appear before the CIT-A to prosecute the case of assessee and urged to remand the issue(s) to the file of the CIT-A for fresh adjudication.

The Ld. DR vehemently relied on the orders of the lower authorities.

Heard rival submissions of both the parties and perused the material available on record. We find that the CIT-A passed an ex parte order for non appearance of the assessee before him. We further find that the CIT-A has offered adequate opportunity of hearing to the assessee. But as per submission of the AR of the assessee, the Counsel of the assessee was under bed rest due to his illness and could not appear before the CIT-A to prosecute the case of assessee. In such circumstances in the interest of justice and taking into consideration the submission as submitted by the Ld.AR before us, we deem it fit and proper to remand the issue(s) to the file of CIT-A for fresh adjudication. The assessee shall be at liberty to file/produce evidences, if any to substantiate his claim and shall co-operate with the CIT-A in further Shyamal Dutta 2 appellate proceeding. Accordingly, the grounds raised by the assessee are allowed for statistical purpose.