SANWALCHAND UDAYCHAND BAFNA,MUMBAI vs. ITO 19 (3)(2), MUMBAI

The facts and circumstances are exactly identical in both the appeals of different assessee’s, hence, I will take the facts from ITA No. 4367/Mum/2019 and will decide the issue.

At the outset, it is noticed from the order of the CIT(A) that CIT(A) has passed an ex-parte order and hearing of appeal was fixed first on 18.03.2019 and appellate order was passed on 04.04.2019. The disallowance has been confirmed by the CIT(A) on presumptions, assumptions, conjunctures and surmises and without allowing reasonable opportunity of being heard to assessee in violation of principles of natural justice.

When this was pointed out to Ld. Sr. Departmental Representative, Shri V.K. Chaturvedi, he fairly conceded the position and could not controvert the above submissions.

I find that the learned CIT(A) has dismissed appeal filed by the assessee ex-parte for non-prosecution, but failed to decide the issue on merit in respect of issues challenged in appeal. No doubt, it is the responsibility of the person who files appeal to go to the appellate authorities and file necessary evidences for speedy disposal of appeal. When the appellant did not appear before the authority as and when the appeal is called for hearing, the appellate authority is left with no option but to dispose off, appeal on the basis of materials available on record. However, such appeal should be decided on merits. In Sanwalchand Udaychand Bafna & Sanwalchand Udaychand Bafna (HUF) ; AY 10-11 this case, on perusal the order passed by the learned CIT(A), I find that the CIT(A) has disposed off the appeal filed by the assessee for non prosecution without discussing the issues challenged in appeal on merit. Therefore, I am of the considered view that the appeal needs to be set aside to the file of the learned CIT(A) to decide the issue involved in appeal on merits. Hence, I set aside the appeal to the learned CIT(A) and direct him to reconsider the issue in accordance with law after affording adequate opportunity of being heard to the assessee. Needles to say, the assessee shall go before the learned CIT(A) and file necessary evidences or documents to justify his case. In case, the assessee fails to appear before the learned CIT(A), then CIT(A) is free to take decision in accordance with law.

As the facts and circumstances in ITA No. 4366/Mum/2019 are exactly identical to ITA NO. 4367/Mum/2019. Therefore, findings given by me in the impugned order in ITA No. 4367/Mum/2019 would mutatis mutandis apply to ITA No. 4366/Mum/2019 as well. Hence, this appeal of assessee is also allowed for statistical purposes.

In the result, the appeal of assessee is allowed for statistical purposes. Order pronounced in the open court on 07.10.2021. (भहावीय स िंह /MAHAVIR SINGH) (उऩाध्मक्ष / VICE PRESIDENT) भ िंफई, ददनािंक/ Mumbai, Dated: 07.10.2021 सुदीप सरकार, व.निजी सचिव / Sudip Sarkar, Sr.PS Sanwalchand Udaychand Bafna & Sanwalchand Udaychand Bafna (HUF) ; AY 10-11 आदेश की प्रनिलऱपप अग्रेपषि/Copy of the Order forwarded to : अऩीराथी / The Appellant 1. प्रत्मथी / The Respondent. 2. आमकय आम क्त(अऩीर) / The CIT(A) 3. आमकय आम क्त / CIT 4. ववबागीम प्रतततनधध, आमकय अऩीरीम अधधकयण, भ िंफई / DR, ITAT,

Mumbai गार्ड पाईर / Guard file. 6. आदेशािुसार/ BY ORDER, त्मावऩत प्रतत //// उप/सहायक पंजीकार (Astt.