M/S DAVEY AGENIES,ASANSOL vs. I.T.O WD - 2(4),ASONASAL, ASANSOL

The assessee in the present case is a partnership firm, which is engaged in the business of trading of pharmaceutical products as C&FA/consignment agent. The return of income for the year under consideration was filed by it on 29.09.2008 declaring total income of Rs.4,16,051/-. In the assessment completed under section 143(3) vide order dated 31.12.2010, the total income of the assessee was determined by the Assessing Officer at Rs.37,58,200/- after making additions, inter ./2013 Assessment year: 2008-2009 Page 2 of 3 alia, on account of the alleged bogus liability amounting to Rs.25,86,623/- and disallowance of Rs.7,45,482/- made under section 40(a)(ia) of the Act. Against the order passed by the Assessing Officer under section 143(3), an appeal was preferred by the assessee before the ld. CIT(Appeals), who dismissed the same in limine for non-prosecution on the part of the assessee, as according to him, there was no compliance on the part of the assesese to the notices issued by him fixing the appeal for hearing from time to time. Aggrieved by the order of the ld. CIT(Appeals), the assessee has preferred this appeal before the Tribunal.

We have heard the arguments of both the sides and also perused the relevant material available on record. In Ground No. 1, the assessee has raised a preliminary issue challenging the impugned order passed by the ld. CIT(Appeals) ex parte on the ground that proper and sufficient opportunity was not given by him during the course of appellate proceedings. In this regard, the ld. counsel for the assessee has pointed out from the impugned order of the ld. CIT(Appeals) that as per the adjournment sought by the assessee, the hearing fixed on 29.01.2013 was adjourned by the ld. CIT(Appeals) to 12.02.2013. He has submitted that the assessee, however, failed to appear on 12.02.2013 since the appeal of the assessee was transferred from the jurisdiction of the ld. CIT(A), Assansol to the ld. CIT(Appeals), Durgapur, which the assessee was not aware of. It is thus clear that only one opportunity was effectively granted to the assessee by the ld. CIT(Appeals), Durgapur and the same could not be availed by the assessee due to sufficient cause as explained by the ld. counsel for the assessee before us. Having regard to all these facts and circumstances of the case, we find merit in the contention of the ld. counsel for the assessee that the ld. CIT(Appeals) has disposed of the appeal of the assessee vide his impugned order passed ex parte without giving proper and sufficient opportunity of being heard and there is a clear violation of principle of natural justice. In that view of the matter, we set aside the impugned order of the ld. CIT(Appeals) and remit the ./2013 Assessment year: 2008-2009 Page 3 of 3 matter back to him with a direction to dispose of the appeal of the assessee afresh after giving proper and sufficient opportunity of being heard to the assessee.

In the result, the appeal of the assessee is treated as allowed.