PRAKASH DHANJI SHAH,MUMBAI vs. DCIT CEN CIR 3, MUMBAI

Assessee by : Ms. Vinita Shah (AR) Revenue by : Shri Naveen Gupta (DR) Date of hearing : 20.06.2016 Date of Order : 20.06.2016

O R D E R

PER PAWAN SINGH, JM:

1. On the facts and circumstances of the case as well as in Law, the Learned CIT(A) has erred in passing the ex-parte order, without granting the opportunity of being heard to the assessee.

2. On the facts and circumstances of the case as well as in Law, the Learned CIT(A) has erred in confirming the action of Learned Assessing Officer in making an addition of Rs. 12,97,400/- by treating the cash found during the course of search as alleged Unaccounted Income of the assessee, without considering the facts and circumstances of the case.

for our consideration is that CIT(A) erred in passing the ex-parte order without granting opportunity of being heard. Authorised Representative (AR) of the assessee argued that the First Appellate Authority (FAA) passed the order without giving proper notice of the proceedings. AR of the assessee further argued that keeping in view the Principle of Natural Justice; the assessee may be granted opportunity of being heard at the stage of FAA and submits that matter may be remanded for fresh hearing. Departmental Representative (DR) for Revenue supported the order of ld CIT(A).

3. We have considered the rival contentions of the parties and perused the order passed by CIT(A). We noticed that in paragraph no.4 of its order made the following observations: “Notice u/s 250 of the Act was issued for hearing to the assessee. During the course of appellate proceeding, the appellant has neither appeared nor sought adjournment”. The CIT(A) further observed that assessee is casual in approaching and failed to appear before him despite opportunity. The CIT (A) invoked the provisions of section 114(g) of the Indian Evidence Act and dismissed the appeal ex-parte. We have noticed that the CIT(A) has not referred as to when the notice was issued to the assessee. For which date of hearing of the appeal was fixed. The notice was duly served or not. What mode of service of notice was adopted/followed by CIT(A). The order does not reveal that the date(s) of hearing) of appeal. The order for proceeding the assessee ex-party is erroneous and against the Principal of Natural Justice Considering the facts and circumstances of the case, we restored the present appeal to the file of CIT(A) for hearing the matter afresh. Ld CIT(A) is directed to provide adequate and sufficient opportunity to the assessee and pass the order in accordance with law. The assessee also directed to fully co-operate during the proceeding and not to delay the proceeding without reasonable excuse. The assessee further directed to approach the CIT (A) immediately on receipt of this order with the request to fix the matter for hearing.

4. With these observations, Ground No.1 raised in the present appeal is allowed for statistical purpose. We have already restored the case to the file of CIT(A), hence, the discussion on Ground No.2 is became academic.

Order pronounced in the open court on this 20th June, 2016.