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Facts
The assessee's appeal was decided ex-parte by the CIT(A) on the grounds that the assessee failed to make submissions despite notices. The assessee claimed that they were not given effective opportunity of hearing as the notices were not served.
Held
The Tribunal held that the CIT(A) did not provide an effective opportunity of hearing to the assessee, leading to a miscarriage of justice. The impugned order was set aside, and the matter was restored to the CIT(A).
Key Issues
Whether the CIT(A) provided an effective opportunity of hearing to the assessee before deciding the appeal ex-parte?
Sections Cited
250(2)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, MUMBAI BENCH “SMC”, MUMBAI
Before: SHRI B.R. BASKARAN & SHRI RAJ KUMAR CHAUHAN
PER RAJKUMAR CHAUHAN: This appeal is directed against the order dated 15/05/2024 passed by National Faceless Appeal Centre, Delhi (NFAC)[hereafter called ‘Ld.CIT(A)’] passed under section 250 of the Income-tax Act, 1961 of the Income-tax Act, 1961 (in short, ‘the Act’) wherein the appeal of the assessee was decided exparte on the ground that appellant-assessee has failed to make any submission despite issuing of notice on 3 occasions by the Learned first appellate authority.
On perusal of the impugned order, it is noticed that the Ld.CIT(A) has proceeded to decide in the appeal on merit holding that the appellant has failed to make any submissions despite opportunity given, therefore, he was constrained to concur with the finding of Learned Assessing Officer in the absence of any meaningful or worthwhile submissions from the assessee.
We have heard the Ld.AR and the Ld.DR and also perused the materials available on recorded. It was submitted that the Ld.CIT(A) has decided the appeal without giving effective opportunity of hearing to the assessee-appellant as there is no proof that the alleged notice / communication sent to the assessee- appellant on 12/06/2023, 10/04/2024 and 18-04-2024 were ever served upon the assessee. It is, therefore, argued that the impugned order has resulted into miscarriage of justice and the appellant-assessee needs to be heard by the Ld.CIT(A). Therefore, the impugned order may be set aside and the matter be restored to the file of the CIT(A).
The Ld.DR, on the other hand, submitted that there is no illegality in the impugned order as it is the assessee-appellant, who failed to make submission before the Ld.CIT(A) despite opportunity given on three occasions. Therefore, the Ld.DR supported the order of the Ld.CIT(A) and prayed for dismissal of the appeal. 5. We have considered the rival submission and examined the record. Section 250(2) of the Act Provides as below:-
(2) The following shall have the right to be heard at the hearing of the appeal- (a);xxxxxxxxxxxxxxxxxxxxxxxxx (b)the [Assessing Officer] [ Substituted by Act 4 of 1988, Section 2, for " Income-tax Officer" (w.e.f. 1.4.1988).], either in person or by a representative.
The observation of the Ld.C IT(A) at paras 6.1 and para 10 of the impugned order, has held as under:-
“6.1 Before considering the grounds of appeal filed by the appellant, it is pertinent to note that in order to decide this appeal in a timely manner notices/communications were sent to the appellant on 12.06.2023, 10.04.2024, 18.04.2024. However there has been no response from the appellant till date, The appellant has not filed any written submissions nor any evidences in support of the grounds of appeal. There is no gainsaying that once the appeal is filed by the appellant, it is obligatory on his part to purposefully and co- operatively pursue the same in a worthwhile manner, which the appellant has evidently failed to do. It clearly shows that the appellant is not interested in pursuing this appeal in any productive manner. Under these circumstances, this appeal is liable to be dismissed in terms of the ratio of the judgments of the Hon'ble Apex Court and the various High Courts
7………………. to 9…………………….
In view of the discussion in the preceding paragraphs, I am constrained to concur with the AO's findings of fact and decisions thereof, more particularly in the absence of any meaningful and worthwhile submissions/documentations even during the instant appellate proceedings, to counter effectively the position adopted by the AO on the concerned issues and reduced in writing in the assessment order. It is trite that the appellate authority is essentially called upon to balance the two sides of an argument presented before him as held in Nirmal Singh an Others of the Hon’ble Punjab and Haryana High Court [Cr Bi,3791 if 2013 (O & M) dated 01.05.2014 and in the absence of any reasonable, cogent and valid arguments / contentions advanced by the appellant in the instant appeal to counter the AO’s decision as contained in the assessment order, as mentioned earlier, the addition made by the AO is sustained.”
It is evident from the above observation of the Ld.CIT(A) extracted above that no effective opportunity of hearing has been given to the assessee before passing the impugned order. There is nothing on record to show that the notices sent on 12/06/2023, 10/04/2024 and 18-04-2024 were served on the assesse-appellant. In these circumstances, we are of the considered opinion that the impugned order has resulted in miscarriage of justice as affording an effective opportunity of hearing is sine qua non of the provisions of section 250(2) of the Act and the Ld.CIT(A) has failed to give the effective opportunity of hearing to the assessee- appellant while passing the impugned order. The impugned order is accordingly set aside and the matter is restored to the file of the Ld.CIT(A) with the direction to decide the appeal de novo after providing adequate opportunity of hearing. The appellant-assessee shall make the submission / necessary documents, if so required by the CIT(A) within a period of sixty days of this order.
In the result, the appeal filed by the assessee bearing is allowed for statistical purpose.