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Income Tax Appellate Tribunal, “SMC” BENCH,
Before: SHRI ABY T. VARKEY, JM & MS PADMAVATHY S, AM
O R D E R
PER ABY T. VARKEY, JM:
This is an appeal preferred by the assessee against the order of the Ld. Commissioner of Income Tax (Appeals)/(NFAC), Delhi dated 23.05.2023 for the assessment year 2014-15.
At the outset, the Ld. AR of the assessee pointed out that the impugned order of the Ld. CIT(A) is an ex-parte order. According to him, the Ld. CIT(A) erred in appreciating the facts before him and thus erred to hold that assessee was given four (4) opportunities and that assessee failed to comply with the same, which resulted in him passing the ex-parte order. According to Ld. AR, though the Ld. CIT(A) noticed that the assessee had not complied to the notices of hearing fixed on four occasions, but as a matter of fact, only once he fixed the appeal for hearing i.e. on 26.04.2023; and thus Ld. CIT(A) erred in 2 A.Y. 2014-15 Shreeballabh Ramkaran Lohiya holding that assessee failed to comply with notice given by Ld. CIT(A) on four occasions. According to him, a perusal of the dates of issuance of notice and the dates of compliance would reveal that notices were issued between 08.05.2019 and 23.12.2020 and compliance were between 13.05.2019 and 06.01.2021 which were undisputedly during the Covid-19 Pandemic. According to him, the Ld. CIT(A) has admitted that on 01.11.2022 “communication window was enabled” which fact itself shows that only once notice was issued by him on 26.04.2023. In order to support the aforesaid contentions, the assessee has filed an affidavit. Further, it was also brought to our notice that the assessee had filed written submission and relevant documents running more than thirty nine (39) pages before the Ld. CIT(A)-29 during the physical filing of appeal (since assessment order has been passed by AO on 22nd Dec,2016 and the assessee had filed paper book before the Ld. CIT(A)-29 during the physical regime). And thereafter, the appeal got migrated to the faceless regime and thus the appeal was heard by Ld. NFAC which passed the impugned order on 23.05.2023 ex-parte qua assessee without adjudicating the merits of the grounds of appeal raised by assessee. And therefore, he prays that the impugned ex-parte order be set aside and the matter restored back to the file of the Ld. CIT(A) for fresh adjudication.
3. Per contra, the Ld. Sr DR opposes the prayer of the assessee and submits that proper opportunity was given by the Ld. CIT(A) but the assessee failed to comply with the direction of the Ld. CIT(A). And therefore, no second inning be granted to the assessee.
3 A.Y. 2014-15 Shreeballabh Ramkaran Lohiya 4. We have heard both the parties and perused the records. From a perusal of the impugned order of the Ld. CIT(A), we note that the impugned order of Ld. NFAC is an ex-parte order qua assessee and that too without going into merits of the grounds raised by assessee. In this regard, the Ld. CIT(A) observes that he had given four opportunities to the assessee but assessee failed to comply, so he dismissed the appeal. But, we note that three opportunities were given during the Covid-19 Pandemic period; and only once notice was issued on 26.04.2023 which was issued after communication window was enabled on 01.11.2022. Therefore, the impugned action of the Ld. CIT(A) cannot be countenanced. Moreover, it is noted that the AO had framed the assessment order on 22.12.2016, and assessee had filed appeal before Ld. CIT(A)-29, Mumbai wherein the assessee had filed paper book running into thirty nine (39) pages before the Ld. CIT-29, Mumbai which appellate jurisdiction later got migrated to the Ld. NFAC. From a perusal of the impugned order, it is discerned that the contents of the paper book has not been taken note by the Ld. CIT(A) before passing the impugned order. In any case, the Ld. CIT(A) has not decided the appeal as mandated by sub-section (6) of section 250 of the Income Tax Act, 1961 (hereinafter “the Act”). In such a scenario, we are inclined to set aside the impugned order of the Ld. CIT(A) and restore the appeal back to his file with a direction to adjudicate the grounds of appeal raised by assessee in accordance to sub-section (6) of section 250 of the Act. And the Ld. AR/assessee is directed to upload/file relevant documents/written submission to 4. A.Y. 2014-15 Shreeballabh Ramkaran Lohiya support the grounds of appeal raised before the First Appellate Authority and may request for hearing in accordance to Rules, if he desires. And the Ld. CIT(A) to adjudicate the grounds raised by assessee in accordance to law after hearing the assessee.