PARESH VALIA,MUMBAI vs. DCIT, CIRCLE-42(1)(1), MUMBAI

This appeal by the assessee is directed against an ex-parte order passed by the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi[ in short ‘the CIT(A)’] dated 12/05/2023, for the Assessment Year 2016-17.

Shri Poojan Mehta appearing on behalf of the assessee submitted that the CIT(A) in an ex-parte proceedings has dismissed the appeal of assessee for non-prosecution.

Shri Prabhat Kumar Gupta representing the Department supporting the impugned order stated that sufficient opportunity was given to the assessee by CIT(A). The assessee failed to comply with the notice of hearing on all the occasions. He pointed that the CIT(A) has also considered the merits of the addition and has dismissed the appeal on merits as well. The ld. Departmental Representative prayed for dismissing the appeal of assessee.

Both sides heard, orders of authorities below examined. A perusal of the impugned order shows that the CIT(A) had issued notice of hearing to the assessee on four occasions. On all the four dates, the assessee failed to respond to the notices. Finally, the CIT(A) dismissed the appeal for non- prosecution. It is a well settled legal position that the CIT(A) has no power to dismiss the appeal of assessee for want of prosecution. The provisions of section 250 r.w.r. 251 of the Income Tax Act, 1961 [ in short ‘the Act’] mandates that the CIT(A) has to dispose of the appeal on merits by passing a reasoned order. The Hon'ble Jurisdictional High Court in the case of CIT(Central), Nagpur vs. Prem Kumar Arjundas Luthra (HUF), 69 taxmann.com 407 has held that Commissioner of Income Tax (Appeals) cannot dismiss the appeal on account of non-prosecution. In view of the above, impugned order is quashed and the appeal is restored to the CIT(A) for fresh adjudication on merits after affording reasonable opportunity to the assessee/appellant to make submissions, in accordance with law.

The assessee is directed to comply with the notice(s) served by the CIT(A), without fail.

In the result, appeal by the assessee is allowed for statistical purpose. Order pronounced in the open court on Thursday the 19th day of October, 2023. Sd/- Sd/- (PRASHANT MAHARSHI ) (VIKAS AWASTHY) लेखाकार सद�य/ACCOUNTANT MEMBER �याियक सद�य/JUDICIAL MEMBER मुंबई/ Mumbai, �दनांक/Dated 19/10/2023 Vm, Sr. PS(O/S) �ितिलिप अ�ेिषतCopy of the Order forwarded to : �ितिलिप अ�ेिषत �ितिलिप अ�ेिषत �ितिलिप अ�ेिषत 1. अपीलाथ�/The Appellant , 2. �ितवादी/ The Respondent. 3. The PCIT 4. िवभागीय �ितिनिध, आय.अपी.अिध., मुबंई/DR, ITAT, Mumbai 5. गाड� फाइल/Guard file. BY ORDER, //True Copy//