Case Law Details

Case Name : Vibgyor Tech Solutions Pvt. Ltd Vs ITO (ITAT Kolkata)
Appeal Number : ITA No. 2136/Kol/2019
Date of Judgement/Order : 14/08/2020
Related Assessment Year : 2013-14
Courts : All ITAT (7310) ITAT Kolkata (590)

Vibgyor Tech Solutions Pvt. Ltd Vs ITO (ITAT Kolkata)

The issue under consideration is whether ex parte order passed by CIT(A) because of non attendance of assessee on the date of hearing is justified in law?

ITAT states that the impugned order of the Ld. CIT(A) is ex parte and assessee/ assessee’s Ld. Counsel was not heard before disposal of the appeal. The Ld. CIT(A) noted that he had fixed the appeal on two occasions i.e on 04/05//2018 and 21/05/2018; and since none appeared, he was pleased to dismiss the appeal for non-prosecution. It has to be kept in mind that if an assessee is aggrieved by an order of the Assessing Office (AO), then the assessee has a valuable right to file an appeal before the Ld. CIT(A), who is duty bound to decide the appeal ground wise on merits. In case if the assessee does not turn up for whatever reasons, then the Ld. CIT(A) ought to have called for assessment folder/records from the AO and then decide the grounds on merits. If the Ld. CIT(A) dismisses the appeal without going into the merits of the case, then the statutory right of appeal vested with the assessee will become meaningless. I note that the Ld. CIT(A) has stated that though the notices were issued, it could not be served upon the assessee since it was returned back with the postal remark ‘Left’. Therefore, CIT(A) dismissed the appeal of assessee ex parte without going into the merits of the ground raised by the assessee. However, ITAT note that address of assessee company given in the assessment order as well as in the Form 36 filed before this Tribunal is different. Thus, ITAT note that there is a change in address. Therefore, they presume that notice(s) has not been served upon the assessee, since there is change in address. In the light of above discussion, ITAT is of the opinion that the impugned order of the Ld. CIT(A) is bad for violation of natural justice. Therefore, they set aside the impugned order of the Ld. CIT(A) and remand the matter back to him for fresh adjudication.

FULL TEXT OF THE ITAT JUDGEMENT

This is an appeal preferred by the assessee against the order of Ld. CIT(A)-2, Kolkata dated 05-06-2018 for the assessment year 2013-14.

2. None appeared for the assessee. However, it is noted that there is an application for condonation of delay. From a perusal of it, it is understood that the delay was caused due to the medical dis-ability of the managing director of the appellant company, who was suffering from various ailments and in that process could not handover the appeal documents to the Ld. AR of the assessee. Therefore, since there is reasonable cause, i condone the delay and proceed to examine the grounds of appeal raised by the assessee.

3. Ground no. 2 of assessee’s appeal is against the action of the Ld. CIT(A) in deciding the appeal ex parte. It is noted that the impugned order of the Ld. CIT(A) is ex parte and assessee/ assessee’s Ld. Counsel was not heard before disposal of the appeal. The Ld. CIT(A) noted that he had fixed the appeal on two occasions i.e on 04/05//2018 and 21/05/2018; and since none appeared, he was pleased to dismiss the appeal for non-prosecution. It has to be kept in mind that if an assessee is aggrieved by an order of the Assessing Office (AO), then the assessee has a valuable right to file an appeal before the Ld. CIT(A), who is duty bound to decide the appeal ground wise on merits. In case if the assessee does not turn up for whatever reasons, then the Ld. CIT(A) ought to have called for assessment folder/records from the AO and then decide the grounds on merits. If the Ld. CIT(A) dismisses the appeal without going into the merits of the case, then the statutory right of appeal vested with the assessee will become meaningless. I note that the Ld. CIT(A) has stated that though the notices were issued, it could not be served upon the assessee since it was returned back with the postal remark ‘Left’. Therefore, he dismissed the appeal of assessee ex parte without going into the merits of the ground raised by the assessee. However, I note that address of assessee company given in the assessment order as well as in the caption of the impugned order of the Ld. CIT(A) is as given below:

M/s. VIBGYOR TECH SOLUTION LTD
B-45, NEW GARIA CO-OPERATIVE
HOUSING SOCIETY
KOLKATA-700 094

4. However, I note from Form No.36 filed before this Tribunal, the address of assessee company for sending of notice is as under:-

M/s. VIBGYOR TECH SOLUTIONS PRIVATE LTD
Flat-4A, Builcon Daisy, 4th Floor,
625, Nayabad Kolkata (Garia)
Kolkata-700 094

5. Thus, I note that there is a change in address. So I presume that notice(s) has not been served upon the assessee, since there is change in address. In the light of above discussion, I am of the opinion that the impugned order of the Ld. CIT(A) is bad for violation of natural justice. Therefore, I am inclined to set aside the impugned order of the Ld. CIT(A) and remand the matter back to him for fresh adjudication. The assessee is directed to be diligent in future and also directed to furnish the correct address and email id to the Ld. CIT(A) without fail and if necessary, to file written submissions on each ground raised along  with requisite documents to substantiate its claim/submissions/contentions if advised to do so and the Ld CIT(A) to pass a speaking order ground wise on merits.

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

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