SHYAMENDRA KUMAR,PATNA vs. ITO WARD 6(5), PATNA

The present appeal has been preferred by the assessee against the order dated 21.09.2023 of the National Faceless Appeal Centre [hereinafter referred to as ‘CIT(A)’] passed u/s 250 of the Income Tax Act (hereinafter referred to as the ‘Act’).

Brief facts of the care are that the assessee is an individual who entered into a land development agreement with M/s Laliteshwar Builder, Patna in the financial year 2010-11 relevant to assessment year 2011-12. However, the assessee failed to file any return of income for the relevant assessment year, consequently, a notice u/s 148 of the Act was issued on 28.03.2018 to bring to tax the income pertaining to capital gains arising out of the transactions of the land development agreement. Subsequently, a notice u/s 143(2) of the Act was issued, however, there was no compliance from the assessee. Due to this non- compliance, the Assessing Officer completed the assessment u/s 144/147 of the Act making addition of Rs.37,49,583/- on account of long-term capital gain.

Aggrieved by the above assessment order, the assessee preferred an appeal before the ld. CIT(A). The ld. CIT(A) issued multiple notices to the assessee on different dates i.e. 05.02.2021, 03.11.2022, 03.05.2023, 24.08.2023, 04.09.2023 and 12.09.2023 but the assessee failed to appear or respond before the ld. CIT(A). Even notices sent to the registered email-id of the assessee which was provided in Form 35 but unanswered. As a result, the ld. CIT(A) passed an ex parte order confirming the assessment order.

Dissatisfied with the above order, the assessee has filed the appeal before this Tribunal. However, the records indicate that the assessee has failed to appear on 10.09.2024 before the Tribunal and the assessee filed an application seeking adjournment of hearing scheduled on 16.12.2024 but on the said date also, no one appeared on behalf of the assessee. Therefore, no other alternative left to decide the appeal with the assistance of the ld. DR.

The ld. DR submitted that the assessee is a habitual defaulter which is evident from the fact that the assessment order was completed u/s 144/147 of the Act due to the assessee’s non-compliance. The assessee also failed to appear before the ld. CIT(A) on multiple dates despite sufficient opportunity of being heard was provided to the assessee. Even before this Tribunal, the assessee has failed to prosecute the appeal, therefore, the ld. DR stated that the appeal may be dismissed.

We, after hearing the submissions of the ld. DR and perusing the materials available on record, we find that it is true that the assessee failed to appear before the Assessing Officer, ld. CIT(A) and even before this Tribunal and the ld. CIT(A) passed the impugned order ex parte without deciding the appeal on merit as well. We note that as per section 250(6) of the Act, it is mandatory for the ld. CIT(A) to decide the appeal on merits after considering the facts and documents. We further note that the ld. CIT(A) simply dismiss the appeal merely because the assessee did not appear before ld. CIT(A) or did not comply with the notices, ex-parte in limine without adjudicating issues arising in the appeal on merits, such order is not sustainable. It is equally true that the assessee also did not comply with the notices issued by the AO as well by ld. CIT(A) , and did not file the requisite details/documents to support his contentions. In the light of the above, we deem it appropriate to remand back the appeal to the file of the ld. CIT(A) with a direction to decide the appeal on merits after affording reasonable opportunity of being heard to the assessee. The assessee is also directed to cooperate and duly comply with the notices issued by the ld. CIT(A) during the remand proceedings. If the assessee fails to do so, the ld. CIT(A) shall be free to pass order as deemed fit based on material available on record. Thus, the appeal of the assessee is allowed for statistical purposes.

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