Ex parte penalty order passed ignoring adjournment application filed by assessee was set aside by ITAT

Ex parte penalty order passed ignoring adjournment application filed set aside as the  CIT-A  had never ever bothered to peruse the Appellate Folder

ABCAUS 2420 (2018) 07 ITAT

The instant appeal was filed by the assessee against an order passed by the Commissioner of Income Tax (Appeals) whereby he dismissed the appeal of the assessee by means of an ex-parte Order on the alleged ground of non appearance.

It was observed that the assessee had filed the written submission which was sent for remand report from the A.O. On the next date when the case was fixed for hearing, the CIT(A)  found that there was no compliance on the part of the appellant. The CIT(A) opined that in view of the non compliance during the appellate proceedings and no new fact/details available for consideration, there was no infirmity in the AO order. Therefore, he dismissed the appeal.

Before the Tribunal, the assessee submitted that the assessee had filed an adjournment application but the CIT(A) had ignored it. The main grievance of the assessee was that the CIT(A) should not have dismissed the appeal by passing an ex-parte order, on the alleged ground of non-appearance as the assessee had requested for adjournment and had participated in the appellate proceedings.

The Tribunal opined that the rules of natural justice, are manifested in the twin principles of nemo judex in parte sua (no person shall be a judge in his own case) and audi alterem partem (the right to be heard). The aim of natural justice is to secure justice. The principle of ”audi alteram partem” only means that the party affected should be given sufficient opportunity to meet the case against him.

It was noted that by taking no notice of the duly presented and acknowledged adjournment application of the assessee, the CIT(A) had violated the principle of natural justice and it was a gross negligence of the part of the CIT(A) as while alleging the non-appearance he had never ever bothered to peruse the Appellate Folder to examine the adjournment application of the assessee. Besides, the CIT(A) did not discuss the assessee`s case on merit, based on the material available before him.

It was noted that the CIT(A), in his order himself admitted the facts. Thus, it was abundantly clear that assessee had submitted written submissions during the appellate proceedings and the CIT(A) sent these submissions to assessing officer to take remand report from him.

The Tribunal observed that the CIT(A) neither considered the written submissions of the assessee nor he waited for remand report, hence the assessee`s case had not been adjudicated on merits and on the basis of the material available on record, therefore it was violation of principle of natural justice, and hence, the Appellate Order was unsustainable and bad in law.

Accordingly the ITAT set aside the order of the CIT(A) and remanded the matter back to his file to adjudicate the issue afresh on merits.

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