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Income Tax Appellate Tribunal, BENCH ‘D’ KOLKATA
Before: Hon’ble Shri S.S.Viswanethra Ravi, JM & Dr.Arjun Lal Saini, AM ]
The captioned appeal filed by the assessee pertaining to A.Y.2010-11, is directed against the order passed by the Commissioner of Income Tax –(Appeals) -9, Kolkata, in Appeal No.254/CIT(A)-9/Wd-33(3)/2014-15/Kol, dated 29.02.2016, which in turn arises out of an order passed by the Ld. Assessing Officer u/s 143(3) of Income Tax Act, 1961 (in short, the Act) dated 28.03.2013.
The facts of the case are stated in brief. The return of income for A.Y.2010-11, was e-filed by the assessee on 13.10.2010 declaring a total income of Rs.10,02,187/-. The return was processed u/s 143(1) of the Act. Later on the case was selected for scrutiny u/s 143(3) of the Act and the AO has completed the assessment by making various additions. Aggrieved from the order of the ld. AO, the assessee filed an appeal before the ld. CIT(A), who has also confirmed the action of the AO by observing the followings :- “In this case, notice U/s 250 was issued on 10/02/2015 by which date of hearing was fixed on 27/02/2015 however, neither anybody attended nor any written reply was received on the date of hearing. Therefore, fresh notices dated 25/05/2015,02/11/2015,28/12/2015,18/01/2016 & 19/02/2016 respectively were issued
2 Pratush Patodia A..Y.2010-11 but there was no compliance on the part of the appellant. Since there is no compliance during the appellant proceedings and there is no new fact/details available for consideration, I do not find any infirmity in the AO’s order. Therefore, appeal is dismissed.”
Not being satisfied with the order of ld. CIT(A), the assessee is in further appeal before us.
Although in this appeal the assessee has taken multiple grounds of appeal but at the time of hearing the grievance of the assessee had been confined to only ground no.1 which relates to an ex-parte order made by the ld. CIT(A) without giving opportunity of hearing to the assessee. The ld. AR for the assessee has stated that notice u/s 250 of the Act was issued on the assessee on dated 10.02.2015 by which the date of hearing was fixed on 27.02.2015. The assessee filed an adjournment petition before the ld. CIT(A) on dated 24.02.2015, seeking an adjournment. The ld. CIT(A) did not consider the adjournment application of the assessee. However, the ld. CIT(A) issued fresh notices for hearings but none of them served on the assessee. The ld. AR for the assessee has explained that in respect of fresh notices on various dates, such as 25.05.2015, 07.11.2015, 28.11.2015, 18.01.2016 and 19.02.2016 etc, for that the assessee stated that he did not receive them. Had the ssessee received these notices from the income tax department, he would have presented before the ld. CIT(A). Therefore order passed by the ld. CIT(A) is in violation of natural justice and without giving an opportunity to the assessee of being heard.
5. On the other hand, the ld. Departmental Representative for the revenue has primarily reiterated the stand taken by the AO and the ld. CIT(A),which we have already noted in our earlier para, and is not being repeated for the sake of brevity. The ld. DR also submitted that after taking the first adjournment the assessee had nearly one year time but the assessee did not approach the ld. CIT(A) within that period to follow up the matter from his side. Therefore ld CIT (A) considered it that the assessee was not interested to pursue the appeal, hence he was right in dismissing the appeal.
3 Pratush Patodia A..Y.2010-11 6. Having heard the rival submissions, perused the material available on record , we are of the view that there is merit in the submissions of the ld. AR for the assessee , as the propositions canvassed by the ld. AR for the assessee are supported by the facts narrated above. As the ld. AR for the assessee has explained that the assessee has filed an adjournment application and took an adjournment and after that the assessed did not receive any notice from the income tax department, in spite of this, the ld. CIT(A) has passed the order without giving an opportunity of being heard to the assessee. Therefore we are of the view that the assessee did not get sufficient opportunity of being heard. Hence, we are of the view to remit the issue back to the file of the ld. CIT(A) to decide the case afresh after giving adequate opportunity to the assessee of being heard. Therefore we set aside the order of the ld. CIT(A) and remit case back to the file of the ld. CIT(A) to decide the case afresh after giving adequate opportunity of being heard to the assessee, as discussed supra.
In the result, all the grounds of appeal of the assessee are allowed for statistical purposes. Order pronounced in the court on 28.09.2016.