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Facts
The assessee filed an appeal before the ITAT after a delay of approximately 400 days. The assessee had also been ex-parte before the Ld. CIT(A) who dismissed the appeal for non-prosecution. The ITAT condoned the delay subject to a cost.
Held
The ITAT held that the Ld. CIT(A) erred in dismissing the appeal for non-prosecution without considering the merits. The tribunal set aside the order of the Ld. CIT(A) and restored the matter back for fresh adjudication.
Key Issues
Whether the CIT(A) can dismiss an appeal for non-prosecution without considering the merits, and if an assessee who was ex-parte before the CIT(A) should be given another opportunity.
Sections Cited
250, 251(1)(a), 251(1)(b), Explanation to section 251(2), 50C
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “C” BENCH MUMBAI
Piyush Vinod Shah Vs. Income Tax Officer, C 304, Agrawal Residency, Ward 42(1)(4) Shankar Lane, Kandivali Room No. 733, Kautilya West Mumbai - 400067 Bhavan, C-41 to C-43, G Block, BKC, Bandra (East) Mumbai - 400051 PAN/GIR No. AKJPS6868F (Applicant) (Respondent) Assessee by Shri Tanzil Padvekar, Adv Revenue by Shri Virabhadra Mahajan, (SR. DR.) Date of Hearing 04.03.2026 Date of Pronouncement 01.04.2026 आदेश / ORDER
PER SANDEEP GOSAIN, JM:
The present appeal has been filed by the assessee challenging the impugned order 07.05.2024 passed u/s 250 of the Income Tax Act, 1961 (‘the Act’), by the National Faceless Appeal Centre, Delhi (NFAC) for the assessment year 2018-19. The following grounds are reproduced below:
1. On the facts and in law, the Learned Commissioner of Income Tax (Appeals) [CIT(A)] erred in dismissing the appeal filed by the Appellant for non-prosecution, without considering the merits of the case. The impugned order passed by the Ld. CIT(A) is in gross violation of the provisions of the Act. As per section 251(1)(a) and (b) read with the Explanation to section 251(2), the CIT(A) is required to adjudicate the appeal on merits and cannot dismiss the same for non-prosecution.
2. On the facts and in law, Assessing Officer [in short AO] has assessed the difference in the reckoner value and CII inflated cost of assessee and the calculation of Capital Gains as per the AO is as follows LTCG is full value of consideration less indexed value of cost of acquisition add cost of improvement Rs. 1,22,27,765 less Rs. 52,34,344 Rs. 69,93,413 i.e., the Addition under Section 50C of the Act.
3. The appellant craves, leave to add to alter, modify, revise, or delete any ground (s) in the interest of justice. ”
At the very outset, we note that there is a delay of approximately 400 days in filing the appeal before us. Considering the entire factual position as explained before us, we are inclined to condone the delay in filing the appeal, subject to a cost of ₹5,000/- to be paid by the assessee, which shall be deposited in the Prime Minister’s Relief Fund. Consequently, the delay is condoned, and the appeal is admitted for hearing on merits.
From the records, we also noticed that assessee was ex- parte before Ld. CIT(A) and consequently, considering the documents placed on record, Ld. CIT(A) dismissed the appeal.
Be that as it may, without going into the merits of the issues raised by the assessee and considering the fact that the assessee could not put effective representation before Ld. CIT(A). Therefore, considering the interest of justice, the Bench is of the view that one more opportunity be given to the assessee to represent his case before Ld. CIT(A). Therefore, considering the overall circumstances of the present case, we deem it proper to set aside the order passed by Ld. CIT(A) and restore the matter back to the file of Ld. CIT(A) for deciding the same afresh by providing adequate opportunity of hearing, subject to cost of Rs. 5,000/- imposed upon the assessee which shall be deposited in the Prime Minister Relief Fund and a copy of the receipt shall be placed on the file before Ld. CIT(A) within 30 days from the date of receipt of this order. The assessee shall not seek any adjournment on frivolous grounds and shall remain cooperative during the course of proceedings.
Before parting, we want to make it clear that our decision to restore the matter back to the file of CIT(A) shall in no way be construed as having any reflection or expression on the merits of the dispute which shall be adjudicated by CIT(A) independently in accordance with law.
Needless to mention that Ld. CIT(A) shall provide adequate opportunity of hearing to the assessee. The assessee shall not seek any adjournment on frivolous grounds and shall remain cooperative during the course of proceedings.
In the result, the appeal filed by the assesse stands allowed for statistical purposes.
Order pronounced in the open court on 01.04.2026
SD/- SD/- (JAGADISH) (SANDEEP GOSAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Dated 01/04/2026 आदेश की प्रतितिति अग्रेतिि/Copy of the Order forwarded to : अपीलार्थी / The Appellant 1. प्रत्यर्थी / The Respondent. 2. संबंधित आयकर आयुक्त / The CIT(A) 3. 4. आयकर आयुक्त(अपील) / Concerned CIT धिभागीय प्रधतधिधि, आयकर अपीलीय अधिकरण,मुम्बई/ DR, ITAT, Mumbai 5. गार्ड फाईल / Guard file. 6. आदेशानुसार/BY ORDER, सत्याधपत प्रधत //True Copy//
उि/सहायक िंजीकार ( Asst. Registrar) आयकर अिीिीय अतिकरण, मुम्बई / ITAT, Mumbai