SHRI ABDULKADRI ADAMBHAI KURESHI,,RAJKOT vs. THE INCOME TAX OFFICER, WARD-2(3) (3), , RAJKOT

The captioned appeal has been filed at the instance of the Assessee against the order of the Learned Commissioner of Income tax (Appeals)-2, Rajkot, dated 01/09/2017 arising in the matter of assessment order passed under s.143(3) of the Income Tax Act, 1961 (here-in-after referred to as "the Act") relevant to the Assessment Year 2012-13.

At the outset, it was perceived from the order of Ld. CIT(A) that the several notices were issued and served upon the assessee for fixing the date of the hearing and last date of hearing of the appeal was fixed on 29.09.2017 but in none of the occasion anybody appeared on behalf of assessee except one time seeking for adjournment. Therefore, the Ld. CIT(A) passed an ex parte order due to non- appearance of the assessee by confirming the order of the AO. Against the impugned ex parte order of Ld. CIT(A), the assessee filed an appeal before us and pleaded that the impugned order has been passed without giving opportunity to the assessee. The ld. AR filed written submission wherein was prayed before us to set aside the appeal to the learned CIT (A) for fresh adjudication as per the law. The ld. AR also assured that the assessee shall extend the full co-operation during the appellate proceedings.

On perusal of appellate order, we find that Ld. CIT(A) affirmed the action of Assessing Officer ex parte without mentioning any reason for confirming the same on merits. The provisions of Section 250(6) of the Act require the Commissioner (Appeal) to dispose of the appeal in writing with reasoning. But we find from the impugned order of Ld. CIT(A), who confirmed the order of AO, that the appeal was dismissed without deciding the same on merit.

We also find that the assessee appeared/ co-operated before the AO and filed the necessary submission during the proceedings before him. Thus the Ld. CIT-A should have called for the assessment records for considering the submission made by the assessee before the AO before upholding the order of the AO. But the Ld. CIT-A failed to do so.

We further find that the principle of audi alteram partem is the basic concept of natural justice. The expression “audi alteram partem” implies that a person must be given an opportunity to defend himself. This principle is sine qua non of every civilized society.

Indeed, the assessee after filing the appeal should be vigilant enough for pursing it before the authorities but for this, if the assessee fails to pursue the appeal, the assessee cannot be penalized by confirming such huge addition without hearing his points of contentions. The mistake committed by the assesse and punishment given to it (the assessee) by sustaining the addition is not commensurate to each other in the given facts and circumstances. But the negligent/dilly-dally approach of the assessee before the Ld.CIT(A) cannot be neglected/ignored. Therefore, we are inclined to levy a cost of Rs. 5,000/- upon the assessee for adopting the negligent approach in the appeal proceedings before the Ld.CIT(A). Accordingly, we direct the assessee to deposit a sum of Rs. 5,000/- to the Income Tax Department prior to the commencement of hearing before the Ld. CIT(A).

In view of the above, we are of the opinion that the assessee must be given one more opportunity of hearing to represent his case. Therefore, in exercise of power conferred under Rule 28 of Tribunal Rules, we restore this appeal to the file of Ld. CIT (A) for reconsideration all grounds of appeal after allowing proper opportunity of being heard in accordance with law.

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