SONTOSH SINGH REELH,JABALPUR vs. ASSISTANT COMMISSIONOR OF INCOME TAX CIRCLE-1(1), , JABALPUR

ORDER

Per Sanjay Arora, AM:

2.1 The principal argument of the assessee’s counsel, Shri Sapan Usrethe, Advocate, during hearing was of lack of proper opportunity by the first appellate authority, who had passed an ex parte order qua the assessee-appellant in limine. The appeal before the said authority, he would continue, was filed as Santosh Singh Reelh v. Asst. CIT far back as on 16.11.2009, as apparent from Form 35. It came up for hearing for the first time only on 20.02.2017, i.e., after over seven years, notice for which came back unserved with the communication that the assessee had sold his house and shifted somewhere else. Another attempt at service (per the notice dated 18.5.2017) also did not, in view thereof, yield any positive result. The ld. CIT(A) accordingly dismissed the assessee’s appeal for want of advancement of his case before him by the appellant. On being asked by the Bench as to how, then, the impugned order was communicated to the assessee, it was explained by him that it was only on Shri B.L. Mishra, Advocate, the assessee’s counsel before the Revenue authorities, being informed of the outstanding demand against the assessee in view of the impugned order, during his visit to the Revenue office in April, 2019, adverting to the date of the said communication in Form 36, i.e., 02.4.2019. The assessee, Shri Usrethe argued, could not have anticipated a notice after several years. In fact, he did not file any return of income after AY 2015-16 as he had closed his business due to mounting losses and advanced age.

2.2 The ld. DR, Shri I.B. Khandel, would respond by stating that the assessee’s conduct in the matter is clearly negligent. It was his bounden duty to have informed the Department of his current address. Preferring an appeal does not imply mere filing of the appeal papers. The ld. CIT(A) had accordingly rightly dismissed his appeal for want of prosecution

Santosh Singh Reelh v. Asst. CIT At the same time, however, the Revenue (in the office of the first appellate authority) is obliged to, in view of the mandate of section 250(6), decide the assessee’s appeal on merits, i.e., on the basis of the material on record as well as explanation/s furnished before the assessing authority. His order should contain the points/issues arising for adjudication; the respective case of either side qua the same; and the basis of his adjudication/s. It is only in such a case that a higher appellate authority could, in further appeal, examine his decision and issue its’ adjudication/s. The Revenue also did not in the instant case make any serious attempt to communicate the hearing of his appeal to the assessee- appellant, a regular assessee on the record of the Department till AY 2015-16. His returns for later years would contain his current address, which should also be known to his counsel, Shri Mishra, as it subsequently transpired. A honest attempt at service, even if it proves to be infructuous, is a pre-requisite toward providing proper opportunity of hearing to the appellant. Why, rather, one wonders, should not the Revenue insist on the appellants providing their email ids for communication purposes. According reasonable opportunity for being heard, it cannot be overemphasized, is a principal requirement of the judicial process and, therefore, should be, to the extent possible, ensured, in the interest of justice. The reason for examining the conduct of the parties; the impugned order being clearly not in conformity with sec.250(6) of the Act, it may be clarified, is to see if any cost is imposable on the assessee before therefore setting aside the matter back to the file of the ld. CIT(A). I do not consider it so in the facts and circumstances of the case, so that there is no order as to cost.