Yakub Musa Patel, Bharuch V. Income-tax Officer Ward-1(1), Bharuch

ITA 467/SRT/2023

AI Insights

The case involves an appeal by Yakub Musa Patel against an ex parte order passed by the CIT(A), National Faceless Appeal Centre, Delhi, which arose from an assessment order under sections 143(3) r.w.s. 147 of the Income Tax Act, 1961, dated 16.12.2016. The primary contention was that the CIT(A) did not consider the written submissions made by the assessee and passed the order without a hearing, which was claimed to be against the principles of natural justice. The Tribunal noted the absence of a merit-based decision in the CIT(A)'s order and acknowledged the assessee's failure to follow up post-submission as a procedural mistake. The Tribunal decided to restore the matter to the CIT(A) for a fresh examination on merits.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 301478 (ITAT-SURAT)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 04-09-2023
• Assessment Year: 2009-2010
• Appeal Filed On: 09-07-2023
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: TANSIM A. KAVIWALA
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT (SMC) BENCH BEFORE DR. A. L. SAINI, ACCOUNTANT MEMBER आयकर अपील सं./ITA No.467/SRT/2023 Assessment Year: (2009-10) (Virtual Hearing) Yakub Musa Patel, 72, Capital Business Centre, Panch Batti, Bharuch - 392001 Vs. The ITO, Ward – 1(1), Surat èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AKMPP8976A (Appellant) (Respondent) Appellant by Shri Tansim A. Kaviwala, CA Respondent by Shri Vinod Kumar, Sr. DR Date of Hearing 05/09/2023 Date of Pronouncement 05/09/2023 आदेश / O R D E R PER DR. A. L. SAINI, AM: Captioned appeal filed by the assessee, pertaining to Assessment Year (AY) 2009-10, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals), [in short “the ld. CIT(A)”], National Faceless Appeal Centre (in short ‘the NFAC’), Delhi, dated 12.05.2023, which in turn arises out of an assessment order passed by Assessing Officer u/s 143(3) r.w.s. 147 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”), dated 16.12.2016. 2. At the outset itself, Learned Counsel for the assessee submitted that order passed by the ld. CIT(A) is an ex parte order, however the assessee has submitted written submission in a physical mode before the ld. CIT(A) during appellate proceedings. The ld. CIT(A) did not take into consideration the written submission of assessee, and passed the ex parte order, which is against the principles of natural justice. Page | 2 ITA.467/SRT/2023/AY.2009-10 Yakub Musa Patel The ld. Counsel also submitted that since the assessee has submitted entire details and documents before the ld. CIT(A), therefore the Tribunal has to adjudicate the assessee`s appeal on merit, in spite of the facts, that the impugned order passed by the ld. CIT(A) is an ex parte order, without expressing the opinion on merit. 3. On the other hand, Learned Senior Departmental Representative (ld. Sr. DR) for the Revenue submitted that in Form Nos. 35 and 36, same address has stated and after filing the written submissions, the assessee did not approach to the ld. CIT(A), therefore it is a mistake on the part of the assessee, not to do the follow up with the ld. CIT(A) to adjudicate his appeal on merits. Therefore, since the assessee was not actively participated in the appellate proceedings and hence ld. CIT(A) has passed the ex parte order. Therefore, ld. DR contended that order of ld CIT(A) may be upheld and appeal of the assessee may be dismissed. 4. I have heard both the parties. Considering the above facts, I note that assessee could not plead his case successfully before the ld. CIT(A). I also note that ld. CIT(A) has not passed the order as per the mandate of provisions of section 250(6) of the Act. That is, ld. CIT(A) did not pass order on merit based on the material available on record. There is also mistake on the part of the assessee that after filing the written submission before ld CIT(A), the assessee did not appear before ld CIT(A) and did not submit further submission. Hence, I am of the view that one more opportunity should be given to the assessee to plead his case before the ld. CIT(A). I note that it is settled law that principles of natural justice and fair play require that the affected party is granted sufficient opportunity of being heard to contest his Page | 3 ITA.467/SRT/2023/AY.2009-10 Yakub Musa Patel case. Therefore, without delving much deeper into the merits of the case, in the interest of justice, I restore the matter back to the file of ld. CIT(A) for de novo adjudication and pass a speaking order after affording sufficient opportunity of being heard to the assessee, who in turn, is also directed to contest his stand forthwith. Therefore, I deem it fit and proper to set aside the order of the ld. CIT(A) and remit the matter back to the file of the ld. CIT(A) to adjudicate the issue afresh on merits. For statistical purposes, the appeal of the assessee is treated as allowed. 5. In the result, appeal filed by the assessee is allowed for statistical purposes. Order is pronounced on 05/09/2023 in the open court. Sd/- (Dr. A.L. SAINI) ACCOUNTANT MEMBER lwjr /Surat Ǒदनांक/ Date: 05/09/2023 SAMANTA Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat