What did the Tribunal hold?

The Tribunal found sufficient cause for the assessee's absence before the CIT(A). The matter was restored to the CIT(A) for adjudication afresh, directing the assessee to attend sincerely.

The assessee's appeal before the CIT(A) was decided ex-parte due to the assessee's failure to attend hearings. The assessee claimed this was due to a partner's illness and sought another opportunity.

What were the issues?

Whether the CIT(A) erred in passing an ex-parte order without providing a reasonable opportunity to be heard, and if the assessee had sufficient cause for non-appearance.

Malda Construction Co., Malda vs A.C.I.T Cir - Malda, Malda | ITAT Kolkata 2015

Income Tax Appellate Tribunal, KOLKATA BENCH “B” KOLKATA

Before: Shri N.V. Vasudevan & Shri Waseem Ahmed

आदेश /O R D E R

PER Waseem Ahmed, Accountant Member:-

This appeal by the assessee is arising out of order of Commissioner of Income Tax (Appeals), Jalpaiguri in appeal No.65/MLD/CIT(A)/Lal/11-12 dated 09.11.2012. Assessment was framed by ACIT, Circle, Malda u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) vide his order dated 28.11.2011 for assessment year 2009-10. The grounds of appeal raised by the assessee read as under :

1. That the Order of the Ld. Commissioner of Income Tax (Appeals) is arbitrary, uncalled for and hence bad in law.

2. a. That the Ld. CIT(A) has erred in sustaining the addition of Rs.31,90,000/- made by the Ld. A.O merely on the basis of the disclosure made during the Survey operation under undue mental Malda Constn. Co. v. ACIT MLd Cir. Page 2 pressure and stress and without any reference of any specific findings in the impounded documents and/or in the regular books of accounts.

b. That the Ld. CIT(A) erred in confirming the addition of Rs.31,90,000/- ignoring the decisions of the jurisdictional ITAT stating that net profit of 4% is sufficient in contact business where books of accounts are maintained. c. That the Ld. CIT(A) erred in confirming the addition ignoring the Instruction No. F No. 286/2/2003. IT(Inv IT) dated 10th March, 2003 issued by the CBDT against making the assessment on the basis of the disclosure obtained during Survey operations and ignoring the materials and evidences on record. d. That the Ld. CIT(A) erred in making an ex-parte order without giving reasonable opportunity of being heard and thereby denying natural justice.”

At the outset it was noticed that the CIT(A) has passed an ex-parte order sustaining the addition made by the Ld. AO. It was also observed that the CIT(A) has provided various opportunities to the assessee on different dates to defend the case but none appeared on behalf of the assessee. Hence there was no option available to the CIT(A) but to pass the order on the basis of available material on record.

Aggrieved assessee preferred an appeal before the Tribunal. Miss Varsha Jalan, Ld AR appeared on behalf of the assessee and Mr. Niloy Baran Som, Ld. DR appeared on behalf of the Revenue.

At the time of hearing Ld. AR has submitted that Mr. Pradip Kumar Basak, partner of the assessee-firm was looking after the taxation matter of the firm. During the time of hearing at CIT(A) stage, Mr. Pradip Kumar Basak , partner of the firm was not well. He was suffering from Bipolar Affective Disorder. Therefore he could not attend the hearing of CIT(A). In support of his claim the assessee has submitted duly notarized affidavit and the medical prescription. The Ld. AR also prayed that one more opportunity should be given to assessee before the Ld. CIT(A) to defend the case of the assessee.

Malda Constn. Co. v. ACIT MLd Cir. Page 3 5. The Ld DR vehemently supported the orders of the authorities below.

We have heard the contentions of both the parties and perused the materials available on record. From the aforesaid submission of the Ld. AR, we are of the view that there was sufficient cause which prevented the assessee to attend the hearing before the Ld.CIT(A) to defend the case. Therefore, we, in the interest of justice and fair play restore the matter to the file of Ld. CIT(A) with the direction to adjudicate the matter afresh as per the law. It is also instructed the assessee to attend the hearing proceedings before the CIT(A) sincerely. Hence, appeal of assessee is allowed for the statistical purpose.

MALDA CONSTRUCTION CO.,MALDA vs. A.C.I.T CIR - MALDA, MALDA

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