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TMI Blog2014 (12) TMI 555X X X X Extracts X X X X X X X X Extracts X X X X ..... T(A)." 2. No one was present at the time of hearing on behalf of the assessee however considering the material available on record in the above mentioned grounds it was considered appropriate to proceed with the hearing ex-parte qua the assessee appellant on merit. 3. The relevant facts of the case are that the assessee is stated to be engaged in the business of export of home fabrics and sold house property at Garden Estate for a consideration of 2,26,00,000/-. Income of Rs. 37,33,520/- was returned which was processed u/s 143(1)(a) and the case was selected for scrutiny under CASS. Consequently notice u/s 143(2) was issued and served upon the assessee and in compliance thereto and subsequent notice the assessee was represented through AR. 3.1. The AO required the assessee to explain the improvement cost qua the property sold which was claimed by the assessee to the extent of Rs. 53,98,500/- and also transfer expenses of Rs. 2,00,000/-. Since the assessee could not produce documentary evidence, the AO concluded that improvement cost expenses had been claimed just to reduce taxable income from income. Consequently addition of Rs. 55,98,500/- was made in the hands of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Assessee had specifically requested for the case to be fixed for the third week of January 2012, and it was done so by this office, still no representation was made nor any written submissions were filed on that date on the merits of the case and a letter was filed stating that ;- "This is to inform you that please kind give the adjournment for today and give the next date in a week of Feb." 8.3. On this application, the case was adjourned to 15.02.12, Meanwhile there was a change in the incumbent in this office and the undersigned joined the office. A notice dated 02.02.12 was issued fixing the date for hearing on 13.02.12, in view of the fact that the Assessee had requested for the hearing to be fixed in February. No compliance was made on 13.02.12, but on 15.02.12, (the date fixed by my predecessor), Sh. Bharat Sehgal, Power of Attorney holder appeared and requested for adjournment to the first week of March and also filed a letter dated 15.02.12 signed by Sh. Bhardwaj Tajender, CA in which it was specifically stated as under :- "You are requested to adjourn the date and allow the date to some other day conveniently in the 1st week of March, 12." 8.4 On the specific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the date fixed for hearing on 14,12.2012 it is submitted that our client is out of India and in his absence documents cannot be signed. You are requested kindly to adjourn the date to the 2nd week of Feb. 2013." 8.10 Thus it is seen that even after so many adjournments and non compliances, the Appellant is still asking for further adjournment. This is despite the fact that the first notice in the case had been issued as long back as on 16.08.2011 and the Appellant has held much more than fair number of opportunities for preparing and presenting in his case. However, as seen from the earlier conduct of the Assessee it is clear that the Assessee is avoiding compliance before this office. Perusal of the above letter received on 18.12.12 further proves that the Assessee is deliberately avoiding making compliance before the office of Commissioner (Appeals). It is seen that this letter claims that ".... client is out of India and in his absence documents cannot be signed." 8.11 However, perusal of the file shows that there is a Power of Attorney on file by Sh. Raman Kumar Kapur in favour of Bhardwaj Tajender, CA and Sh. Bharat Sehgal, regarding the Appeal against the assessment for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s clear that the Appellant is not interested in prosecuting the Appeal and in fact is avoiding compliance to the notices issued by this office and is avoiding submitting of any explanations, documents etc before the Commissioner (Appeals). The provisions of Section 251(1) provide that the Commissioner (Appeals) cannot only confirm, reduce or annul the assessment, but also can enhance the same, It appears that the Appellant is afraid that on examination of the case by the Commissioner (Appeals), enhancement may result or the case may be further strengthened against the Assessee as the Commissioner (Appeals) has all the powers of the Assessing Officer and further facts may be brought to light which may be further confirmatory of the action of the Assessing Officer. This impression is drawn by the undersigned in view of the continuous and deliberate seeking of adjournments and non compliance over a very long period of time during which the appellate proceedings have continued." 5. Aggrieved by this the assessee is in appeal before the Tribunal agitating the opportunity of being heard and on merit. No one was present on behalf of the assessee at the time of hearing however considering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h his counsel has repeatedly sought an adjournment which is evident from the above quoted paras. However being of the view that the assessee should not suffer on account of the fault of the counsel and considering the plea raised by the assessee before the Tribunal by way of the present appeal we deem it appropriate to restore the issue back to the file to the CIT(A) with the direction to decide the same in accordance with law after giving the assessee a reasonable opportunity of being heard. It is hoped that the opportunity so provided to the assessee is not abused and lost and the assessee should ensure that full and proper compliance is made in support of its grounds before the CIT(A) by ensuring a proper representation in letter and spirit as the doors of justice are closed to the party who abuses the process of law. It may be further clarified that in the eventuality the assessee does not fully participate in the proceedings and ensures that the hearing is concluded and in the eventuality the assessee does not show full compliance the Ld. CIT(A) would be at liberty to decide the appeal on the basis of the material available on record. 6. In the result the appeal of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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