SHRI NISARHUSEN AMADALI LAKHANI,,BOTAD vs. THE INCOME TAX OFFICER, WARD-2(5),, BHAVNAGAR

The captioned appeal has been filed at the instance of the assessee against the order of the Commissioner of Income Tax (Appeals)-6, Ahmedabad (‘CIT(A)’ in short), dated 18.12.2017 arising in the assessment order dated 28.12.2016 passed by the Assessing Officer (AO) under s. 143(3) of the Income Tax Act, 1961 (the Act) concerning AY 2014-15.

The assessee in the captioned appeal has raised several grounds assailing the order of the CIT(A) for dismissal of the appeal of the assessee in limine. However, it is noticed that one of the substantive grounds raised by the assessee seeks to impugn the order of the CIT(A) towards dismissal of the appeal of the assessee in contravention of Section 250(6) of the Act.

When the matter was called for hearing, the learned AR for the assessee, at the outset, urged for condonation of delay of 16 days in filing appeal before the Tribunal. The learned counsel referred to the affidavit seeking condonation of delay dated 27th March, 2018 and submitted that the assessee does not stand to benefit at all by such delay and the small delay does not involve any culpable negligence or malafide. Having regard to the submissions made, the delay is condoned and the appeal is admitted for effective hearing.

At the further outset, the learned counsel pointed out that the CIT(A) has dismissed the appeal of the assessee summarily for want of prosecution. It was contended that while dismissing the appeal of the assessee in limine, the CIT(A) has not rendered any decision on the subject matter of appeal on merits as obligated under s.250(6) of the Act. It was thus urged that the order of the CIT(A) suffers from violation of principles of natural justice and hence requires to be set aside for fresh adjudication on merits.

The learned DR, on the other hand, relied upon the order of the CIT(A).

We straightway refer to Section 250(6) of the Act which enjoins that the CIT(A) shall state the points for determination before it and the decision shall be rendered on such points alongwith reasons for the decision. Thus, it is incumbent upon the CIT(A) to deal with the grounds on merits even in ex parte order. In view of Section 250(6) of the Act, the CIT(A) has no power to dismiss an appeal on account of non-prosecution. This view is also taken by the Hon’ble Bombay High Court in case of CIT vs. Premkumar Arjundas Luthra HUF (2017) 297 CTR 614 (Bom.). A bare glace of the order of the CIT(A) shows that CIT(A) has not addressed itself on the various points placed for its determination at all and dismissed the appeal of assessee for default in nonappearance. Needless to say, the CIT(A) plays role of both adjudicating authority as well as appellate authority. Thus, the CIT(A) could not have shunned the appeal for non- compliance without addressing the issue on merits.

In the totality of the circumstances, we consider it just and expedient to restore the matter back to the CIT(A) in the larger interest of justice with a view to enable the assessee to avail proper opportunity for disposal of appeal by the CIT(A) on various points. Needless to say, the assessee shall extend full co- operation to the CIT(A) without any demur, failing which, the CIT(A) shall at liberty to conclude the appellate proceedings in accordance with law. Hence, the order of the CIT(A) appealed against, is set aside and all the issues raised in the impugned appeal are restored back to the file of the CIT(A) for fresh adjudication in accordance with law after giving reasonable opportunity of hearing to the assessee.

In the result, appeal of the assessee is allowed for statistical purposes.