HARI KISHAN BABBAR,GURGAON vs. ITO, WARD-35(4), NEW DELHI

The ld. Counsel for the assessee submitted that in this case, the ld. CIT(A) has passed the impugned order in limine applying the decisions of the Hon’ble Supreme Court in the case of CIT vs. BN Bhattacharya (1997) 118 ITR 461 (SC) and the decision of the ITAT Delhi in the case CIT vs. Multiplan India Pvt. Ltd., reported in 38 ITD 320 (Delhi). It was also submitted that the impugned order has been passed by the ld.CIT(A) ex parte qua the assessee without giving any final opportunity to the assessee and without deciding the grounds taken by the assessee on merit as per the requirement of section 250 (6) of the Act.

The ld. Sr. DR, in all fairness, admitted that the ld.CIT(A) has dismissed the appeal of the assessee in limine and, therefore, the Department has no serious objection if the matter is restored to the file of the CIT(A) for fresh adjudication, after allowing due opportunity of being heard to the assessee.

On careful consideration of the rival submissions and on perusal of the order of the ld.CIT(A), I am of the considered opinion that the assessee has not been provided due opportunity of being heard before the ld.CIT(A) and the ld.CIT(A) has also not decided the grounds of appeal on merits and, instead, dismissed the appeal in limine which the ld. CIT(A) is not empowered to do. The ld. CIT(A) is required to adjudicate the issues come before him on merit and pass a speaking order as per section 250(6) of the Act. Since, in the instant case, the ld.CIT(A) has dismissed the appeal ex parte without deciding the grounds taken by the assessee in Form No.35 on merits and dismissed the appeal in limine, the impugned order of the CIT(A) is set aside and the appeal is CIT(A) at first appellate stage for adjudicating the matter afresh, after allowing due opportunity of being heard to the assessee.

In the result, the appeal filed by the assessee is allowed for statistical purposes only.