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Income Tax Appellate Tribunal, SURAT (SMC
Before: DR. A. L. SAINI
आदेश / O R D E R PER DR. A. L. SAINI, AM: Captioned appeal filed by the assessee, pertaining to Assessment Year (AY) 2009-10, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals), [in short “the ld. CIT(A)”], National Faceless Appeal Centre (in short ‘the NFAC’), Delhi, dated 12.05.2023, which in turn arises out of an assessment order passed by Assessing Officer u/s 143(3) r.w.s. 147 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”), dated 16.12.2016.
At the outset itself, Learned Counsel for the assessee submitted that order passed by the ld. CIT(A) is an ex parte order, however the assessee has submitted written submission in a physical mode before the ld. CIT(A) during appellate proceedings. The ld. CIT(A) did not take into consideration the written submission of assessee, and passed the ex parte order, which is against the principles of natural justice.
ITA.467/SRT/2023/AY.2009-10 Yakub Musa Patel The ld. Counsel also submitted that since the assessee has submitted entire details and documents before the ld. CIT(A), therefore the Tribunal has to adjudicate the assessee`s appeal on merit, in spite of the facts, that the impugned order passed by the ld. CIT(A) is an ex parte order, without expressing the opinion on merit.
On the other hand, Learned Senior Departmental Representative (ld. Sr. DR) for the Revenue submitted that in Form Nos. 35 and 36, same address has stated and after filing the written submissions, the assessee did not approach to the ld. CIT(A), therefore it is a mistake on the part of the assessee, not to do the follow up with the ld. CIT(A) to adjudicate his appeal on merits. Therefore, since the assessee was not actively participated in the appellate proceedings and hence ld. CIT(A) has passed the ex parte order. Therefore, ld. DR contended that order of ld CIT(A) may be upheld and appeal of the assessee may be dismissed.
I have heard both the parties. Considering the above facts, I note that assessee could not plead his case successfully before the ld. CIT(A). I also note that ld. CIT(A) has not passed the order as per the mandate of provisions of section 250(6) of the Act. That is, ld. CIT(A) did not pass order on merit based on the material available on record. There is also mistake on the part of the assessee that after filing the written submission before ld CIT(A), the assessee did not appear before ld CIT(A) and did not submit further submission. Hence, I am of the view that one more opportunity should be given to the assessee to plead his case before the ld. CIT(A). 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
ITA.467/SRT/2023/AY.2009-10 Yakub Musa Patel 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 ld. CIT(A) 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 ld. CIT(A) 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.
Order is pronounced on 05/09/2023 in the open court.