CIT-Appeals ex-parte order bad as he himself adjourned hearing for being busy – ITAT

CIT-Appeals ex-parte order bad as he himself adjourned hearing for being busy, notice received on same date and AR was suffering from high fever – ITAT

ABCAUS Case Law Citation:
ABCAUS 1251 (2017) (05) ITAT

The Grievance:
The appellant assessee was aggrieved by the order passed by the Commissioner of Income Tax  (Appeals) ex-parte by holding that assessee had not attended the hearings before him

Assessment Year : 2010-11
Date/Month of Pronouncement: May, 2017

Contentions of the appellant assessee:
It was contended that CIT(Appeals) erred in passing the ex-parte order by holding that assessee had not attended the hearings before him which was absolutely incorrect. It was argued that the notice of first hearing was received on the date of hearing itself. It was pointed out that as per entries in the order sheet before the CIT(A), that the assessee had attended hearings on two occasions but since the CIT(A) was busy, the case was adjourned. It was submitted that on the date so adjourned the authorised representative of the assessee was suffering from high fever and an adjournment petition was filed before the CIT(A) requesting for grant of adjournment. However, the CIT(A) did not agree for any adjournment and passed ex-parte order.

Observations made by the Tribunal:
The Tribunal observed that the CIT(A) had passed an order ex-parte despite the fact that the notice of first hearing was received on the date of hearing itself i.e. 21/04/2016 so the hearing was adjourned to 24/05/2016. On 24/05/2016, the learned CIT(A) was busy and the hearing was adjourned from his end to 10/06/2016. On 10/06/2016, the assessee’s AR was suffering from high fever. A letter stating this fact was filed on 10/06/2016 and hearing was adjourned to 17/06/2016. The assessee’s AR could not recover from his high fever before 17/06/2016 and therefore could not attend the hearing on 17/06/2016. After getting well, the AR attended the office of learned CIT (A) on 20/06/2016 but he was informed that the order has been passed ex-parte.

The ITAT opined that in view of the facts of the case as above, the said ex-parte order was bad in law as the circumstances in which the non attendance resulted were beyond the control of the assessee.

It was also found that the CIT (Appeals) has not adjudicated on the grounds of appeal raised before him and simply passed the ex-parte order for the reason of non attendance.

Held:
The ex-parte order of the CIT(A) was set aside and restored back to the file of the CIT(A) for deciding afresh after giving due opportunity to the assessee.