MAHESH OIL INDUSTRIES,BEED vs. ITO WARD 1(5) AURANGABAD, AURANGABAD

Briefly stated, the facts of the case are that the assessee is a firm, carrying on the business of manufacturing of cotton oil seeds cake. For the AY 2010-11, the assessee filed its return of income on 29-06-2010, declaring total income for Rs. 30,640/-. The return was selected for scrutiny and accordingly, notice(s) u/s. 143(2) and 142(1) of the Act were duly issued and served upon the assessee. The Ld. Assessing Officer (“AO”) completed the assessment u/s. 143(3) of the Act on 01-01-2016, at an assessed amount of Rs. 1,02,800/-, allowing the clerical mistake in quantity details specified in tax audit report. Subsequently, the Ld.PCIT initiated revisionary proceedings u/s. 263 of the Act. Pursuant there to, the Ld.AO passed order u/s. 143(3) r.w.s. 263 of the Act, dt. 28-12-2018,

Aggrieved by the said order, the assessee preferred an appeal before the Ld.ADDL/JCIT(A), challenging the aforesaid addition. Despite service of notices of hearing issued during the appellate proceedings, there was non-compliance which resulted in ex-parte decision by the Ld.ADDL/JCIT(A), dismissing the appeal of the assessee for non- prosecution.

Aggrieved, the assessee is in appeal before the Tribunal raising the following grounds of appeal: “1. The ld CIT(A) erred in law and on facts in dismissing appeal ex-parte without appreciating the facts and circumstances of the case. 2. The ld CIT(A) erred in law and on facts in confirming addition u/s 69C amounting to Rs. 8,28,178/- without appreciating the facts and circumstances of the case. 3. The Appellant craves leave to add, amend, alter, vary, and / or withdraw any or all the above grounds of appeal.”

The Ld.AR submitted that the assessee is keen to ensure complete and total compliance as so required, and the present situation is simply a fall-out of communication gap. It was also submitted that the assessee filed its appeal before the Ld.ADDL/JCIT(A) in physical form, due to his unawareness about the procedural aspects, the assessee presumed that it would receive the notice(s) also in the physical form. The Ld.AR submitted that the assessee has a strong case on merits and, therefore, prayed that in the interest of justice, the assessee may be granted with one more opportunity to substantiate its claim before the Ld.ADDL/JCIT(A) by filing the requisite explanation/details/documents.

We have heard the learned representatives of the parties and perused the material available on record. Admittedly, there was non- compliance to the notice(s) issued by the Ld.ADDL/JCIT(A) which constrained him to pass ex-parte impugned order. We observe that the Ld.ADDL/JCIT(A), in the instant case, has passed the impugned order without himself going into the merits of the case owing to the assessee‟s failure to furnish any submission in support of its claim. The appellate order reveals that the Ld.ADDL/JCIT(A) has applied the decision of the Hon'ble Supreme Court in the case of i. Dr. P. Nalla Thampy vs. Shankar [1984 (Supp) SCC 63], ii. decision of the Hon'ble Bombay High Court in the case of M/s. Chemipol vs. Union of India [Central Excise Appeal No. 62/2009, dt. 12-12-2009] along with certain other decisions mentioned therein and dismissed the appeal of the assessee for non-prosecution. No doubt, the Ld.ADDL/JCIT(A) may decide the appeal where the assessee does not prosecute its appeal in spite of several opportunities. Nonetheless, he has to adhere to legislative mandate enshrined in sub- section (6) of section 250 of the Act, which requires him to state the points for determination, the decision thereon and the reasons for the decision. Thus, in our view, his order is in violation of the provisions of section 250(6) of the Act.

On the facts and in the circumstances of the case enumerated above, we are of the opinion that in the interest of justice, the matter deserves to be sent back to the file of the Ld.ADDL/JCIT(A) for adjudicating the assessee‟s appeal before him afresh, on merits and as per

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