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Assessee by Mr. Druvang H. Diwan, AR Revenue by Ms. Anupama Singla, Sr-DR Date of hearing 05/07/2021 Date of pronouncement 05/07/2021 Order under section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by assessee is directed against the orders of ld. Commissioner of Income tax (Appeals)-2, Surat dated 29.06.2018 for the assessment year (AY) 2012-13. The grounds of appeal raised by the assessee are summarized as under:
1. The Ld. CIT(A) has erred in law and on facts in dismissing the appeal on the ground of noncompliance by the appellant to his notices for hearing. The CIT(A) ought to have decided the appeal on the basis of merits and facts of appellant’s case.
2. Brief facts of the case are that the assessment for the year under consideration was completed on 10.11.2017 under section 143(3) r.w.s. 147. The assessing officer while passing the assessment order made addition of short term capital gain of Rs.3,44,100/- by taking view that the assessee has sold capital asset, which was required to be taxed as (AY 2012-13) Dineshchandra Mohanbhai capital gain and that capital asset was not converted into stock in trade. The Assessing Officer rectified the assessment order under section 154 dated 23.01.2018. On appeal before ld. CIT(A) the action of the assessing officer was affirmed. The ld CIT(A) confirmed the order of assessing officer in ex-parte order by taking view that despite granting a number of opportunity the assessee failed to comply the notices. Further aggrieved, the assessee has filed present appeal before this Tribunal.
We have heard the learned Counsel/ authorised representative (AR/ Counsel) for the assessee and the learned senior departmental representative (Sr DR) for the revenue. The ld counsel for the assessee submits that first notice was not served upon the assessee. With regard to service of second notice the Ld. A.R. submits that due to shortage of time, given in the notice, the assessee could not make compliance. The Ld. A.R. for the assessee submits that the assessee has good case on merit and is likely to succeed if the assessee is heard on merit. The ld counsel for the assessee prayed to restore the appeal to the files of learned CIT(A), with the direction to provide one more opportunity to the assessee and he undertake on behalf of the assessee to be more vigilant in future. The learned Counsel also assured the bench to furnish his email address as well as telephone number for communication of the hearing before ld. CIT(A). In alternative submission the ld. Counsel submits that the order passed by ld CIT(A) is not on merit of the case and the order of ld CIT(A) is liable to be set aside.
On the other hand the ld. Sr. DR for the Revenue submits that the assessee was given two opportunity as recorded in para 5.1.1 of the order passed by the ld. CIT(A). The assessee failed to comply with the notice issued by the ld.CIT(A). The ld. CIT(A) left with no option, except to proceed to decide the issue and in absence of any evidence or explanation (AY 2012-13) Dineshchandra Mohanbhai affirm the action of AO. The learned Sr DR for the revenue prayed for dismissal of the appeal. In alternative submission, the ld. Sr. DR for the Revenue submits that in case the Hon’ble bench deems it appropriate to restore the grounds of appeal
to the file of ld. CIT(A), the assessee be directed to be vigilant and not to default in future in attending the proceedings and to waste the time of public authorities/ld.CIT(A). The assessee should not take the proceeding before the first appellate authority in casual manner.
5. We have considered the rival submission of ld. AR for the assessee and the DR for the revenue and have gone through the orders of lower authorities. We find that the ld. CIT(A) fixed the hearing on two occasions as mentioned in para 5.1.1 of the impugned order. It is recorded by ld. CIT(A) that no compliance was made by the assessee. We find the Ld. CIT(A) has not given fair and proper opportunity to the assessee. The Ld. CIT(A) instead of considering the merit of the case dismissed the appeal in limine. Considering the facts and the circumstances of the case, we are of the view that the assessee deserve one more opportunity of hearing at the stage of first appellate stage, accordingly the grounds of appeal raised by the assessee are restored to the file of learned CIT(A) to decide all the grounds of appeal afresh. We also find one more reason to restore the appeal to the file of ld CIT(A) order passed by him is not in accordance with mandate of section 250(6) of the Income Tax Act. Section 250(6) of the Act mandates that the Ld. CIT(A) while deciding the appeal is required to pass order on points of determination (grounds of appeals), decision therein on and reasons for such decision. Needless to order that before passing the order the ld. CIT(A) shall grant fair opportunity of hearing to the assessee. The assessee is also directed to appear before the ld.CIT(A) as and when the (AY 2012-13) Dineshchandra Mohanbhai