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Facts
The assessee filed appeals against orders of the CIT(A) for AY 2008-09 and 2009-10. There was a delay in filing the appeals, which was attributed to medical reasons and the assessee's hospitalization. The assessee's appeal before the CIT(A) was dismissed for want of prosecution due to non-appearance despite opportunities.
Held
The Tribunal condoned the delay in filing the appeals. It was held that the CIT(A) had dismissed the appeal ex-parte without adjudicating on merits. Therefore, the appeals were restored to the file of the CIT(A) to decide the issue on merit after providing an opportunity to the assessee.
Key Issues
Whether the CIT(A) correctly dismissed the appeal for non-prosecution without deciding the merits, and whether the delay in filing the appeals should be condoned.
Sections Cited
133A, 148, 143(3), 250(6)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, PUNE BENCH “B”, PUNE
Before: SHRI R. K. PANDA & SHRI VINAY BHAMORE
The above two appeals filed by the assessee are directed against the separate orders dated 07.06.2024 of the Ld. CIT(A), Pune-11 relating to assessment years 2008-09 and 2009-10 respectively. For the sake of convenience, both these appeals were heard together and are being disposed of by this common order.
There is a delay of 97 days in filing of both the appeals before the Tribunal for which the assessee has filed condonation applications along with affidavits explaining the reasons for such delay which is due to medical reasons since the assessee was admitted in hospital. After considering the contents of the condonation applications filed along with the affidavits, medical evidences and after hearing the Ld. DR, the delay in filing of the appeals is condoned and the appeals are admitted for adjudication.
Although a number of grounds have been raised by the assessee, however, these all relate to the ex-parte order of the Ld. CIT(A) in dismissing the appeal filed by the assessee for want of prosecution.
Facts of the case, in brief, are that the assessee is an individual and engaged in the business of land trader and engineering work. He filed his return of income on 30.09.2008 declaring total income of Rs.35,33,760/-. A survey action u/s 133A of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) was conducted in this case on 09.03.2011 during which certain incriminating documents were impounded. Subsequently, the Assessing Officer, after recording reasons, reopened the assessment and notice u/s 148 of the Act was issued on 30.03.2013. The Assessing Officer completed the assessment u/s 143(3) of the Act on 19.03.2014 determining the total income of the assessee at Rs.1,01,18,830/- by making certain additions.
The assessee filed an appeal before the Ld. CIT(A). However, despite number of opportunities granted, the assessee did not respond to the notices for which the Ld. CIT(A) dismissed the appeal for want of prosecution by relying on the decision of the Hon'ble Supreme Court in the case of CIT vs. B N Bhattacharjee & Anr (1979) 118 ITR 461 (SC), decision of Hon’ble Madhya Pradesh High Court in the case of Estate of Late Tukojiro Holkar vs. CWT reported in 223 ITR 480 (MP) and various other decisions.
Aggrieved with such order of the Ld.CIT(A), the assessee is in appeal before the Tribunal.
We have heard the rival arguments made by both the sides, perused the orders of the Assessing Officer and Ld. CIT(A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. It is an admitted fact that due to non-appearance of the assessee before the Ld. CIT(A) despite number of opportunities granted, he passed the ex-parte order dismissing the appeal for want of prosecution. However, he has not adjudicated the issue on merit as prescribed under the provisions of section 250(6) of the Act which reads as under: “250(1). … (6) The order of the [Joint Commissioner (Appeals) or the] Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision.”
Since it is the submission of the Ld. Counsel for the assessee that given an opportunity, the assessee is in a position to substantiate his case by filing the requisite details before the Ld. CIT(A) and since the Ld. CIT(A) has not decided the appeal on merit, therefore, considering the totality of the facts of the case and in the interest of justice, we deem it proper to restore the issue to the file of the Ld. CIT(A) with a direction to decide the appeal on merit by passing a speaking order. The assessee is also hereby directed to appear before the Ld. CIT(A) on the appointed date and make his submissions, if any, without seeking any adjournment under any pretext failing which the Ld. CIT(A) shall be at liberty to pass appropriate order as per law. We hold and direct accordingly. The grounds raised by the assessee are accordingly allowed for statistical purposes.
ITA No.2562/PUN/2024 (A.Y. 2009-10)
After hearing both sides, we find the grounds raised in are identical to the grounds raised in . Following the same reasonings, we restore the issue in to the file of the Ld. CIT(A) for deciding the same on merit after giving due opportunity of being heard to the assessee. The grounds raised by the assessee are accordingly allowed for statistical purposes.
In the result, both the appeals filed by the assessee are allowed for statistical purposes.
Order pronounced in the open Court on 22nd April, 2025.