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Facts
The assessee filed an appeal challenging the impugned order passed by the learned CIT(A) who had dismissed the appeal ex-parte due to non-appearance. The CIT(A) dismissed the appeal without adjudicating the grounds raised by the assessee on merits.
Held
The Tribunal held that the CIT(A) cannot dismiss an appeal for non-prosecution. Therefore, the impugned order was set aside and the matter was restored to the file of the CIT(A) for de novo adjudication on merits.
Key Issues
Whether the CIT(A) was justified in dismissing the appeal ex-parte without adjudicating the grounds on merits. Whether the matter should be remanded for de novo adjudication.
Sections Cited
250, 151A, 148, 149, 69, 56(2)(vii)(b), 250(6)
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Income Tax Appellate Tribunal, MUMBAI “H” (SMC
Before: SHRI SANDEEP SINGH KARHAIL, JM & SHRI GIRISH AGRAWAL, AM
(िनधा�रण वष� / Assessment Year :2015-2016) Fiero Fernandes Vs. ITO, Ward-42(2)(2), 1202 Lourdes Heritage, Mumbai Opposite Our Lady of Lourdes Church, Orlem Malad West Mumbai �थायी लेखा सं./PAN No. : AASPF 3097 Q (अपीलाथ� /Appellant) (��यथ� / Respondent) .. िनधा�रती की ओर से /Assessee by : Ms. Chaitee Londhe, AR राज�व क� ओर से /Revenue by : Shri Pravin Salunkhe, Sr.DR सुनवाई क� तारीख / Date of Hearing : 12/02/2025 घोषणा क� तारीख/Date of Pronouncement : 14/02/2025 आदेश / O R D E R
Per Sandeep Singh Karhail, JM :
1. The present appeal has been filed by the assessee challenging the impugned order dated 05/11/2024 passed under section 250 of the Income Tax Act, 1961 (“the Act”) by the learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi [“learned CIT(A)”], for the Assessment Year 2015-16.
In this appeal, the assessee has raised the following grounds: -
The learned Commission of Income Tax (Appeals) disregarded the fact that the learned Assessing Officer erred in assuming jurisdiction and framing the assessment for the following reasons : (a) in terms of section 151A of the Income Tax Ac 1961 ("the Act"), Fiero Fernandes notice under section 148 of the Act could only be issued by the National Faceless Assessment Centre ("NFAC") and not by the Jurisdictional Assessing Officer ("JAO")
(b) The notice under section 148 of the Act could have been issued only before the limitation expired according to the provisions of section 149 as they stood prior to 1st April, 2021 and therefore the notice under section 148 issued to the Appellant was bad in law. Consequently, the assessment was bad in law and deserves to be quashed.
2. Without prejudice to the above ground, the learned Commissioner of Income Tax (Appeals) erred in facts and in law in confirming the addition of Rs. 9,88,000/- made by the learned Assessing Officer to the returned income of the Appellant.
The learned Commissioner of Income Tax (Appeals) erred in facts and in law In passing the impugned appellate order, without taking into consideration the documents already on record before the lower authorities.
The learned Commissioner of Income Tax (Appeals, erred In facts and in law in confirming the addition of Rs. 6,00,000/- made under section 69 of the Act, without appreciating that the sources of payment towards the entire purchase consideration were fully explained and were evident from the documents.
The learned Commissioner of Income Tax Appeals) erred in facts and in law in not appreciating the write a sum of Rs, 25 lakhs was paid by the Appellant towards purchase consideration, the balance consideration was entirely paid by the other co-owner of the property.
The learned Commissioner of Income Tax (Appeals) erred in facts and in law in confirming the addition of Rs. 3,88,000/- under section 56/2)(vil) of the Act.
Fiero Fernandes 7. Without prejudice to the above ground and strictly in alternative, the learned Commissioner of Income Tax(Appeals) erred in not appreciating that the difference between the stamp duty value and the purchase consideration is less than 10% of the purchase consideration and as upheld by various judicial for a, the amendment to section 56(2)(x) of the Act w.e.f. 01.04.2019 prescribing a price band of 10% being curative and beneficial in nature, would apply retrospectively to section 56(2)(vii)(b) of the Act as well.
The appellant previously to add alter or amend any of the grounds of appeal
prior to or at the time of hearing.
3. We have considered the submissions of both sides and perused the material available on record. In the present case, at the outset, it is evident that the learned CIT(A) has passed the order ex-parte due to the non-appearance of/on behalf of the assessee. We further find that the learned CIT(A) merely on the basis of non-compliance with notices, dismissed the appeal filed by the assessee without adjudicating the grounds raised by the assessee on merits, as required under section 250(6) of the Act. We find that in CIT v/s Premkumar Arjundas Luthra (HUF), reported in [2016] 69 taxmann.com 407 (Bombay), the Hon’ble Jurisdictional High Court held that Commissioner (Appeals) cannot dismiss the appeal on account of non-prosecution of appeal by the assessee. Consequently, we deem it fit and proper to set aside the impugned order and restore the matter to the file of the learned CIT(A) for de novo adjudication of the appeal on merits. We further direct that no order shall be passed without affording reasonable opportunity of hearing to the parties. The assessee is directed to appear before the learned CIT(A) on all the hearing dates as may be fixed without any default. As Fiero Fernandes the matter is being restored to the file of the learned CIT(A) for adjudication on merits, the other grievances raised by the assessee in the present appeal do not call for adjudication at this stage. Accordingly, grounds raised by the assessee are allowed for statistical purposes.