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Income Tax Appellate Tribunal, DELHI BENCH “F” DELHI
Before: SHRI KUL BHARAT & SHRI PRADIP KUMAR KEDIA
PER PRADIP KUMAR KEDIA, A.M.: The captioned appeal has been filed at the instance of the Assessee against the order of the Commissioner of Income Tax (Appeals)-XXXI, New Delhi [‘CIT(A)’ in short], dated 17.03.2017 arising from the assessment order dated 31.03.2016 passed by the Assessing Officer (AO) under Section 254/143(3) of the Income Tax Act, 1961 (the Act) concerning AY 1999-2000.
The grounds of appeal raised by the Assessee reads as under:
“That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in passing an ex-parte order and that too without giving show cause notice as per law and without giving adequate opportunity of hearing and further erred in
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not deciding the appeal on merits.
That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in not quashing the impugned assessment order which was passed by Ld. AO without complying with the directions of Hon’ble Income Tax Appellate Tribunal.
That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. AO in making disallowance of Rs.61,54,309/- u/s 57 on account of financial/interest expenses claimed by assessee in re- casted trading & profit & loss account and that too without considering the submissions of assessee and without observing the principles of natural justice.
That in any case and in any view of the matter, action of Ld. CIT(A) in confirming the action of Ld. AO in making disallowance of Rs.61,54,309/- on account of financial/interest expenses is bad in law and against the facts and circumstances of the case.
That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. AO in making disallowance of Rs.4,81,650/- on account of business development expenses claimed by assessee in re- casted trading & profit & loss account and that too without observing the principles of natural justice.
That in any case and in any view of the matter, action of Ld. CIT(A) in confirming :ve action of Ld. AO in making disallowance of Rs.4,81,650/- on account of business development expenses is bad in law and against the facts and circumstances of the case.
That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in not reversing the
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action of Ld. AO in making addition of Rs.3,51,50,000/- on account of income from other sources.
That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in not quashing the impugned assessment order which is barred by limitation.
That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in not allowing the common depreciation as per law.”
When the matter was called for hearing, none appeared for the assessee. It is seen from the record that multiple opportunities have been given to the assessee. However, having regard to the continued non appearance, the matter is proceeded ex-parte.
On perusal of the order of the CIT(A), we notice that the CIT(A) has also proceeded ex-parte. However, while disposing the appeal, the CIT(A) has merely reproduced the assessment order and confirmed the same in the absence of any appearance. The CIT(A) essentially dismissed the appeal before it for want of prosecution and non attendance. The CIT(A) has apparently not looked into the various grounds of appeal independently and has not determined the issues involved in terms of Section 250(6) of the Act.
Section 250(6) of the Act enjoins that the CIT(A) shall state the points for determination before it and the decision shall be rendered on such points alongwith reasons for the decision. Thus, it is incumbent upon the CIT(A) to deal with the grounds on merits even in ex parte order. In view of Section 250(6) of the Act, the CIT(A) has no power to dismiss an appeal on account of
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non-prosecution. This view is also taken by the Hon’ble Bombay High Court in case of CIT vs. Premkumar Arjundas Luthra HUF (2017) 291 CTR 614 (Bom.). A bare glace of the order of the CIT(A) shows that CIT(A) has not addressed itself on the various points placed for its determination at all and dismissed the appeal of assessee for default in nonappearance. Needless to say, the CIT(A) plays role of both adjudicating authority as well as appellate authority. Thus, the CIT(A) could not have shunned the appeal for non- compliance without addressing the issue on merits.
In the totality of circumstances, we consider it expedient to restore the matter back to the file of the CIT(A) in the larger interest of justice with a view to enable the assessee to avail opportunity once more. However such benevolence will be available at the cost of Rs.5,000/- to be deposited by the assessee within 1 month of service of this order to The Prime Minister Relief Fund.
With these terms, the appeal of the assessee is restored to the file of the CIT(A) for denovo adjudication in accordance with law.
In the result, appeal of the assessee is allowed for statistical purposes. Order was pronounced in the open Court on 26/07/2022.
Sd/- Sd/- [KUL BHARAT] [PRADIP KUMAR KEDIA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: /07/2022 Prabhat