SHRI KISHORBHAI BHAYALALBHAI MISTRY,UDVADA vs. INCOME TAX OFFICER, WARD-5, VAPI

Shri Rajesh Upadhyay, Counsel for the assessee, at the outset, argued that during appellate proceedings, the assessee submitted details in response to first notice issued by the ld. CIT(A). However, in respect of second and third notices issued by the ld. CIT(A), dated 11.09.2020 and 01.01.2021 respectively, the severe Covid -19 disease was going on, therefore assessee could not furnish the details and ITA.473/SRT/2023/AY.2011-12 Kishorbhai Bhaylalbhai Mistry documents. In response to the last notice of the ld. CIT(A), dated 18.05.2023, the assessee filed the adjournment application to submit further documents and details, however the ld. CIT(A) did not consider the same and passed the ex parte order on merit also, without hearing the assessee, which is against the principle of natural justice. Therefore, Ld. Counsel contended that an another opportunity should be given to the assessee, to plead his case before the assessing officer, so that, assessee can explain the facts and plead his case before assessing officer.

On the other hand, Learned Departmental Representative (ld. DR) for the Revenue submitted that order passed by the Assessing Officer is an ex parte order, as the assessee did not appear before the Assessing Officer and assessee also not appeared before the ld. CIT(A), therefore assessee is gross negligent on his part and hence the appeal of the assessee may be dismissed.

I have heard both the sides and gone through the relevant material on record. It is seen that assessment order is passed under section 144 of the Act. However, I note that before the ld. CIT(A) the assessee has submitted details and documents, but the same were not considered by the ld. CIT(A), therefore it is a violation of principle of natural justice. That is, the assessee has participated in appellate proceedings, however, ld. CIT(A) did not hear the assessee, therefore it is against the principle of natural justice. However, I note that since the order passed by the Assessing Officer is under section 144 r.w.s. 147 of the Act, therefore, I note that the Assessing Officer has not examined the basic facts, and documents of the assessee`s case, hence, I am of the view that assessee`s matter should be remitted back to the file of the Assessing Officer for fresh adjudication. Hence, one more

ITA.473/SRT/2023/AY.2011-12 Kishorbhai Bhaylalbhai Mistry opportunity should be given to the assessee to plead his case before the Assessing Officer. I note that it is settled law that principles of natural justice and fair play require that the affected party is granted sufficient opportunity of being heard to contest his case. Therefore, without delving much deeper into the merits of the case, in the interest of justice, I restore the matter back to the file of Assessing Officer for de novo adjudication and pass a speaking order after affording sufficient opportunity of being heard to the assessee, who in turn, is also directed to contest his stand forthwith. Therefore, I deem it fit and proper to set aside the order of the ld. CIT(A) and remit the matter back to the file of the Assessing Officer to adjudicate the issue afresh on merits. For statistical purposes, the appeal of the assessee is treated as allowed.

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