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Income Tax Appellate Tribunal, AHMEDABAD – BENCH ‘A’
Before: SHRI RAJPAL YADAV, VICE- & SHRI WASEEM AHMED
Assessee by : Shri M.J. Shah, AR Revenue by : Shri Virendra Ojha, CIT-DR सुनवाई क� तार�ख/Date of Hearing : 24/06/2021 घोषणा क� तार�ख /Date of Pronouncement: 5/07/2021 आदेश/O R D E R PER RAJPAL YADAV, VICE-PRESIDENT
Assessee is in appeal before the Tribunal against ex parte order of the ld.CIT(A)-6, Ahmedabad dated 16.08.2018 passed for the Asstt.Year 2011-12.
Only grievance of the assessee is that the ld.CIT(A) has erred in dismissing the appeal of the assessee exparte for want of prosecution.
2 3. We shortly take facts of the case of the assessee, as emerging from the relevant orders of the Revenue authorities. The assessee is an individual engaged in investment and trading in shares and securities. He filed his return of income on 21.10.2011 declaring a loss of Rs.(-)28,22,054/-. In an assessment made under section 143(3), the ld.AO made various additions to the declared income. This order of the AO was challenged before the first appellate authority. The ld.CIT(A) dismissed the appeal of the assessee ex parte on the ground of non-prosecution at the end of the assessee. The assessee is now impugning this order of the ld.CIT(A) before the Tribunal.
With the assistance of the ld.representatives, we have gone through the record carefully. A perusal of the CIT(A)’s order would indicate that the ld.CIT(A) has issued notice to the assessee for arguing the appeal on five occasions, but on each occasion no one had appeared, and accordingly, the ld.CIT(A) after putting reliance upon various decisions of Hon’ble Supreme Court and various High Courts, including the decision of Hon’ble Bombay High Court in the case of Chemipol Vs. Union of India (Central Excise Appeal No.62 of 2009) to the proposition that every judicial and quasi-judicial authority is entitled to dismiss the case before him on account of want of prosecution. In this connection, it is pertinent to take note of sub-section (6) of section 250 of the Income Tax Act, 1961 which reads as under:
“6) The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision.”
3 5. On perusal of section would indicate that the ld.CIT(A) was required to formulate points in dispute, and thereafter record reasons on such points. No doubt the ld.CIT(A) has given number of opportunities to the assessee to attend the hearing, but the assessee did not avail and remained absent, which ipso facto would not empower the ld.CIT(A) to pass an ex parte order without going to the merit of the cases and without making a speaking order, because, rationale for passing a speaking order based on the material available on record is that, such orders are subject to further appeal, and such order would enable not only the litigants and the appellate authority to know the exact point of dispute for adjudication. In the instant case, even if the assessee did not participate, the ld.CIT(A) ought to have gone through the assessment record and thereafter formed the point in dispute, and should have recorded reasons in support of his conclusions on those points. The ld.CIT(A) failed to adhere the mandatory procedure, hence his order is not sustainable. We allow this appeal of the assessee and set aside the impugned order of the ld.CIT(A) for fresh adjudication. Needless to mention here, the assessee shall cooperate in the set aside appellate proceeding, and would not indulge in unnecessary delay tactics.
In the result, appeal of the assessee is allowed for statistical purpose. Order pronounced in the Court on 5th July, 2021.