DHARMENDRA VAISHNAV,JODHPUR vs. ITO, WARD, PHALODI

Per Dr. M. L. Meena, AM:

The captioned appeal has been filed by the assessee against the order of the ld. CIT(A) National Faceless Appeal Centre (NFAC), Delhi

dated 27.09.2022 arising out of assessment order passed ex-parte qua the assessee by the AO in respect of Assessment Year: 2017-18.

2 ITA No. 162/Jodh/2022 Dharmendra Vaishnav v. ITO 2. At the time of hearing, the ld. counsel for the appellant has submitted

that the ld. CIT(A) has dismissed the appeal of the assessee by observing

that ground 2 to 4 of appeal were interlinked and that assessee did not

respond to the notices issued for hearing. He contended that the ld. CIT(A)

has not addressed ground no. 3 raised by the appellant before the ld.

CIT(A), that the ld. AO was not justified in arbitrary observing the

commission income at 1.5% based on assumption and surmises. The ld.

counsel argued that the findings of the Assessing Officer are factually

incorrect and since the ld. CIT(A) has not addressed the issue on merits of

the case and merely that he has dismissed the appeal vide para 6, by

observing that despite three opportunities were provided to the appellant

over a span of nearly nineteen months, no response has been received

from the appellant to any of the hearing notices served on it. Thus, the

appeal filed by the appellant is liable to be dismissed for non-prosecution.

The ld. AR further submitted that the addition was made by the AO on

account of commission received on mobile recharge by way of estimating

1.5% without rebutting the submissions of the assessee. Further, the

ground is not addressed by the ld. CIT(A), and therefore, the matter may be

remanded back to the file of the ld. CIT(A) to adjudicate the ground 3 after

granting opportunity of being heard, in view of the principles of natural

3 ITA No. 162/Jodh/2022 Dharmendra Vaishnav v. ITO

justice. The counsel placed reliance on the decision of Delhi ITAT in the

case of Corporate International Financial Service Ltd. v. ITO in ITA No.

2147/Del/2017 (APB pg. 9 to 17) where it was observed that after

considering the statutory provisions of section 246, 246A, 248, 250 and 251

of the Income Tax Act, 1961 and judicial pronouncements in the case of

CIT v. Kanpur Coal Syndicate 53 ITR 225 (SC), CIT v. Rai Bahadur

Hardutroy Motilal Chamaria 66 ITR 443 (SC), CIT vs. B.N. Bhattachargee

118 ITR 461 (SC) and CIT vs. Premkumar Arjundas Luthra (HUF) [2016]

240 taxman 133 held that:

"(C.2.1) In view of the foregoing, we hold that the Ld. CIT(A) erred in dismissing the appeal of the Assessee in limine for non-prosecution of appeal by assessee. We set aside the impugned order of the Ld. CIT(A) and we direct the Ld. CIT(A) to pass denovo order as per law, in accordance with Sections 250 and 251 of I. T. Act."

"7. The appealed has been examined and is adjudicated on merits."

4 ITA No. 162/Jodh/2022 Dharmendra Vaishnav v. ITO was not at all interlinked with ground number 2 and 4. Therefore Ld. CIT(A) erred in dismissing ground number 3 without any specific finding.

written submissions. Admittedly, the ld. CIT(A) has dismissed the appeal of

the assessee for non-prosecution vide para 6 of the impugned order,

although, he has written in para 7 that the appeal has been examined and

adjudicated on merits. It is seen that while adjudicating grounds of appeal

raised in Form No. 35 by the appellant, the ld. CIT(A) has erroneously

interlinked grounds of appeal 2 to 4 and adjudicated together whereas

ground no. 3 was altogether difference with specific issue raised by the

assessee in respect of estimation of commission income at 1.5%. Thus,

ground no. 3 remained unaddressed in absence of specific findings. In our

view, the CIT(A) ought to have considered submissions furnished during

the assessment proceedings that the commission income on mobile

recharge was 1% only. The ld. AR has contended that in the business of

the mobile recharge operators and the assessee received commission at

1% only (APB pg. 1 to 8). Thus, the objection raised by the ld. counsel for

the appellant that ground no. 3 has not been adjudicated by the ld. CIT(A)

5 ITA No. 162/Jodh/2022 Dharmendra Vaishnav v. ITO is factually correct as per record. Accordingly, the issued raised in ground

no. 3 in appeal Form 35, before the ld. CIT(A) is restored back to the ld.

CIT(A) to adjudicate the same on merits after considering the written

submissions of the appellant assessee and granting adequate opportunity

of being heard. In view of that matter, we hold that the appeal has been

decided ex-parte qua the assessee per se against the principles of natural

justice. The ld. CIT(A) ought to have granted adequate opportunity of being

heard to the appellant and gone through the written submissions before

rejecting the appeal in limine for non prosecution. We, therefore, consider it

deem fit to remanded back the matter to the file of the ld. CIT(A) to

adjudicate the appeal denovo as per law. Thus, the matter is restored back

to the file of the ld. CIT(A).

purposes.

Order pronounced in the open court on 07.12.2023

Sd/- Sd/- (Anikesh Banerjee) (Dr. M. L. Meena) Judicial Member Accountant Member *GP/Sr.PS* Copy of the order forwarded to: 1. The Appellant 2. The Respondent

6 ITA No. 162/Jodh/2022 Dharmendra Vaishnav v. ITO