SUCHITRA SILK MILLS PVT. LTD.,,SURAT vs. DY. COMMISSIONER OF INCOME TAX, CIRCLE-2(1)(2),, SURAT

This appeal was taken up on the application filed by the assessee for early hearing of appeal on out of turn basis. In the application, the assessee inter-alia stated that ground no.4 raised in this appeal is covered by the decision of Tribunal in assessee’s own case for Assessment Year (A.Y.) 2012-13 in AHD/2016 order dated 31.08.2018, wherein the addition made in respect of unsecured loans under section 68 of the Act was deleted.

The Ld. Authorised Representative (AR) of the assessee made his submission that the grounds of appeal raised in this appeal is covered by the decision of Tribunal for A.Y. 2012-13 (supra).

The ld.AR in a very loud tone submitted that on seven (07) occasions they sought adjournment and on 8th occasion no opportunity was given. The assessee has brought those facts in notice of learned CIT(A) about the pendency of appeal for A.Y. 2012-13 before the Tribunal on similar issue. The AR of the assessee was asked to produce the copy of application if any filed for seeking the adjournment before CIT(A) to show such fact was brought to his notice. The AR for the assessee in a rude manner stated that each and every fact in tax matter is not necessary to be brought in the notice of ld.CIT(A). The AR for assessee again shouted that his case is covered and should be treated as covered case. The bench directed the AR for the assessee to control himself and to make his submissions in a polite way. The ld.AR submits that the Bench is free to take any decision. However, his case is covered by the order of the Tribunal for A.Y. 2012-13. The ld.AR was further confronted that once the facts, which are now brought on the notice of the Tribunal, was not brought to the notice of the ld.CIT(A) and those facts is not considered by the ld.CIT(A)/First Appellate Authority and that impugned is not passed on merit being ex-parte and in absence of finding of first appellate authority, this bench will not treat the issue as covered in favour of assessee. The ld.AR repeatedly insisted that once the Tribunal has passed the order on similar issue in A.Y. 2012-13 this case should be treated as covered case and insisted in on disrespected manner that his case is covered and matter should not be restored to ld.CIT(A).

On the contrary, the ld. Departmental Representative (DR) for the Revenue submits that the assesse has not contested the appeal on merit before the First Appellate Authority, therefore, the matter may be remanded back to the file of ld.CIT(A) for decision on merit.

We have considered the submission of both the parties and perused the record. We have also considered the plea of assessee for out of turn hearing without keeping any malice in our mind with the prime object of justice delivery system that consumer of justice should not be suffer due to mistake/misbehave on the part of his representative.

We have noted that appeal before the ld.CIT(A) was filed on 18.11.2016, the ld.CIT(A). In para 5.1.1 Ld. CIT(A) recorded that assessee was given ample opportunity, but no compliance was made. The ld. CIT(A) in his all fairness has recorded that the assessee sought adjournment on seven(07) occasions. The appeal

Perusal of impugned order shows that the order passed by the ld.CIT(A) is not in accordance with mandate of section 250(6) of the Income Tax Act. Section 250(6) mandates that order of ld.CIT(A) “shall state the point for determination, decision thereon and the reasons for such decision”. Meaning thereby that the order of ld. CIT(A) must be on merit after considering the facts of the case point of determination and the decisions thereon, instead of dismissing the appeal in lemine or non-prosecution. Therefore, the grounds of appeal raised by the assessee are restored back to the file of Ld. CIT(A) to decide all the issues afresh after giving the opportunity of hearing the assessee. The assessee is at liberty to brought all those facts to the notice of the ld.CIT(A) about the order of the Tribunal for A.Y. 2012-13. Needless to order that before passing the order ld.CIT(A) shall grant opportunity of hearing to the assessee and to pass the order in accordance with law.

In the result, appeal is allowed for statistical purpose.