SHRI CHANDRAKANT HISMATRAI SONAIYA,GODHRA vs. THE ITO, WARD-1, GODHRA

By way of these two Stay Applications, the assessee applicant seeks a stay on collection/recovery of Rs.21,57,680/- for A.Y. 2013-14 and Rs.44,43,130/- for A.Y. 2014-15 till the related appeals for the relevant assessment years are disposed of.

When these Stay Applications were called out for hearing, it was noticed that the related orders passed by the learned CIT(A) which are impugned in appeals, are not only ex- parte orders but it has not disposed of the matter on merits. The ld. CIT(A) has simply dismissed the appeals on the ground that the assessee applicant has not responded to the notices and he, therefore, does not seems to be interested in prosecuting the related appeals and thus summarily disposed of the appeals.

When the above position was put to the ld. Departmental Representative and he was asked as to why the related appeals itself not be disposed of at this stage, as the ld. CIT(A) had declined to deal with the merit of the matter simply on the ground that the assessee applicant has not appeared before him, ld. Departmental Representative suggested that in such a situation the matter can at the best be remitted to the file of ld. CIT(A) for adjudication

Ld. Counsel for the assessee, however, vehemently argued that the matter, if at all be remitted to the file of authorities below, should be remitted to the file of the Assessing Officer. He suggested that as further investigation on facts in these cases are required, the right course of action will be to remit the matter to the file of Assessing Officer. He though did not oppose, however, suggested that he has no objection if the appeals itself being disposed of at this stage.

In view of the above discussions and bearing in mind entirety of the case, we deem it fit and proper to remit the matter to the file of ld. CIT(A) for adjudication on merits. In view of the said legal position that whether the assessee appellant appears before the ld. CIT(A) or not, it is a bounden duty of ld. CIT(A) to dispose of the appeals on merit based on the materials available on record and in accordance with law. There is no escape from performing the statutory duties. The ld. CIT(A) was thus indeed in error in summarily dismissing the appeals. As regards the prayer of the ld. Counsel for the assessee that the matter be remitted to the file of the Assessing Officer, we are unable to accept the same, as to what impact it will have on the position of demand is not our concern. We have remitted the matter to the file of the ld. CIT(A) because of the legal infirmity in the order and we stick to that stand. Appeal is accordingly allowed for statistical purposes in the terms indicated above. As the appeals itself have been disposed of, the very foundation of the Stay Applications ceases to hold good in law. We are, therefore, rejecting the same as not maintainable.

In the result, while the appeals of the assessee are allowed for statistical purposes in the terms indicated above, Stay Applications are dismissed as infructuous. Pronounced in the open Court on this 20th day of March, 2019.