SHRI LALITBHAI ASHUMAL GANGWANI,RAJKOT-GUJARAT vs. THE INCOME TAX OFFICER, WARD-2(1), RAJKOT-GUJARAT

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ITA 38/RJT/2017Status: DisposedITAT Rajkot30 May 2019AY 2008-094 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal held that the CIT(A) erred by dismissing the appeals solely for want of prosecution without deciding on merits. The CIT(A) was mandated to decide appeals on merits as per Section 250(6).

What were the facts?

The assessee's appeals before the CIT(A) were dismissed ex-parte for non-prosecution. The CIT(A) also confirmed penalties imposed under Section 271(1)(c) without detailed merits discussion.

What were the issues?

Whether the CIT(A) can dismiss an appeal for non-prosecution without deciding the merits, and whether penalty under Section 271(1)(c) is sustainable when the appeal is dismissed ex-parte.

Which sections of the Income-tax Act were involved?

Section 271(1)(c),Section 250(6),Section 68

AI-generated summary — verify with the full judgment below

Cases cited in this judgment(3)Show list

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Income Tax Appellate Tribunal, RAJKOT BENCH, RAJKOT

Before: SHRI RAJPAL YADAV & SHRI PRADIP KUMAR KEDIA

For Appellant: Shri M J Ranpura, AR
Hearing: 09/05/2019Pronounced: 30/05/2019

PER RAJPAL YADAV, JUDICIAL MEMBER:

The present three appeals are directed at the instance of the assessee against separate orders of the ld. CIT(A)-2, Rajkot, all dated 10.11.2016, passed in Assessment Years 2006-07, 2007-08 and 2008-09. 2. The solitary grievance of the assessee is that the learned CIT(A) has erred in dismissing his appeals ex-parte and confirming the penalty of Rs.75,070/-, Rs.2,07,520/- and Rs.6,52,210/- imposed by the Assessing Officer under Section 271(1)(c) for Assessment Years 2006-07, 2007-08 and 2008-09 respectively.

3.

With the assistance of learned representatives, we have gone through the record carefully. It emerges out from the record that learned First Appellate Authority has dismissed the appeals of the assessee for want of prosecution.

AY : 2006-07 to 2008-09 The orders of the learned CIT(A), on merits, are verbatim same in all the three assessment years. For the facility of reference, we take note of the relevant part of the order of the learned CIT(A) in Assessment Year 2006-07 which reads as under:-

“4) This appeal was fixed for hearing number of times, details of which are given below, but no compliance was made to any of the notices issued. All these notices were dully served.

SI. Date of notice Date fixed for Remark No. hearing 1 23.10.2015 20.11.2015 None attended nor filed any application for adjournment was filed 2. 02.02.2016 26.02.2016 None attended nor filed any application for adjournment was filed 3. 15.09.2016 04.10.2016 None attended nor filed any application for adjournment was filed 4. 18.10.2016 07.11.2016 None attended nor application (last opportunity) for adjournment was filed.

From the above it is clear that despite several opportunities, none appeared on behalf of the appellant nor any request for adjournment has been filed before the undersigned. It seems that the appellant is not interested in prosecuting the appeal; hence the appeal filed by the appellant is liable to be dismissed for non- prosecution. In my above view, I find support from the following decisions:-

(i) In the case of CIT Vs. B. N. Bhattachargee & Another 118 ITR 461 (relevant pages 477 & 478) wherein their Lordships have held that "the appeal does not mean merely filing of appeal but effectively pursuing it."

(ii) "if the partly at whose instance the reference is made falls to appear at the hearing, or fails in taking steps for preparation of the paper books so as to enable hearing of the reference, this court is not bound to answer the reference.”

(iii) In the case of CIT Vs. Multiplan India Pvt. Ltd. 38 ITD 320 (Del). The appeal filed by the revenue before the Tribunal which was fixed hearing AY : 2006-07 to 2008-09 but on the date of hearing nobody represented the revenue applicant, nor any communication for adjournment was received. There was no communication or information as to why revenue choose to remain absent on that date. The Tribunal on the basis of inherent power treated the appeal filed by the revenue as un-admitted in view of Rule 19 of the Appellate Tribunal Rules, 1963. 5) Therefore, keeping in view of the above, the appeal filed by the appellant is liable to be dismissed for non-prosecution. On merits I find that the Assessing Officer is justified in levying in respect of additions made u/s. 68 in respect of unexplained cash deposits. The penalty is therefore sustained on merits too.

6) In the result, the appeal is to be treated dismissed both for want of prosecution and on merit.”

4.

Sub-section (6) of Section 250 contemplates that learned CIT(A) would state points in dispute and thereafter record reasons in support of his conclusions on those points. A perusal of the learned CIT(A)’s order would indicate that learned CIT(A) has neither determined the points in dispute nor noticed the submissions of the assessee before the Assessing Officer or noticed the statements of facts filed alongwith the appeals. The learned CIT(A) simply noticed the non-attendance of the assessee and thereafter dismissed the appeals for want of prosecution. It is true that the assessee failed to prosecute his appeals and to submit necessary explanation; but, again, sub-section (6) of Section 250 mandates the learned CIT(A) to decide the appeals on merits and not to dismiss them in default or for want of prosecution. As far as the observations of the learned CIT(A) that the appeals are dismissed on merits are concerned, we are of the view that no such discussion is discernible in the order of the learned CIT(A). It is just a single word for the sake of exhibiting compliance of mandate under section 250(6) of the Act. Therefore, we set aside all these orders and restore all the appeals to the file of the learned CIT(A) for fresh adjudication. The learned CIT(A), while adjudicating these appeals, shall take into consideration the judgment of Hon’ble Madras High Court in the case AY : 2006-07 to 2008-09 of B. Loganathan Vs. ITO, reported in [2019] 412 ITR 642 (Mad). The assessee is directed to co-operate with the learned CIT(A) and submit necessary details.

5.

In the result, all the appeals are allowed for statistical purposes.

Order pronounced in the Court on 30th May, 2019 at Ahmedabad. (PRADIP KUMAR KEDIA) JUDICIAL MEMBER Ahmedabad, Dated 30/05/2019 *Bt.

आदेश क" ""त"ल"प अ"े"षत/Copy of the Order forwarded to : 1. अपीलाथ" / The Appellant ""यथ" / The Respondent. 2. 3. संबं"धत आयकर आयु!त / Concerned CIT 4. आयकर आयु!त(अपील) / The CIT(A) 5. िवभागीय "ितिनिध, आयकर अपीलीय अिधकरण/ DR, ITAT, Rajkot 6. गाड& फाईल / Guard file. आदेशानुसार/ BY ORDER,उप/सहायक पंजीकार (Dy./Asstt.

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