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Income Tax Appellate Tribunal, “B” Bench, Mumbai
O R D E R Per Shamim Yahya (AM) :- This appeal by the assessee is directed against the order of learned CIT(A) dated 29.11.2019 and pertains to assessment year 2011-12.
The assessee has raised various grounds of appeal
. At the outset ground No. 1 is pertaining to an ex-parte order wherein failure of natural justice have been claimed. The said ground read as under :
1. Ex-parte Order sans merits - failure of natural justice - order impugned may be quashed The lower authorities erred in not granting adequate opportunity and entirely overlooking the factual merits of the Appellant while determining the assessed income at an unacceptable high pitched figure; therefore, when the impugned Order is passed on the failure of natural justice with insufficient opportunities, the same becomes perverse and the order may be vacated or deserves to be set-aside to file of the Assessing Officer with direction.”
3. Other grounds relate to challenge of jurisdiction and addition under section 68 of the I.T. Act for credit of share capital of Rs. 32,74,29,161/-.
2 M/s. Bloomdale Finvest Private Limited
4. We note that upon assessee’s appeal in this case learned CIT(A) in a completely non-speaking order without discussing on merits of the appeal and without condoning legal delay of mere 19 days dismissed the appeal. His order may be referred as under :- “3.1 For the A.Y. 2011-12, the appellant filed its return of income on 31.03.2013 declaring total income of Rs.3,19,340/-. The case was selected for scrutiny under CASS and the assessment order was passed on 29.03.2014. Subsequently, the Assessing Officer received certain information from DGIT(Inv.), Unit-8(l), Mumbai. Based on the information received, the AO reopened the assessment u/s 147 of the Act and issued a notice u/s 148 of the Act. Eventually, the assessment was completed u/s 144 r.w.s 147 of the Act on 11.12.2018 determining total income of the appellant at Rs. 38,40,22,100/-. Aggrieved by the assessment order, the appellant has filed appeal.
Hearings:
4.1 In the course of appellate proceedings, notices of hearing were issued and sent by speed post. The notices were served upon the appellant and acknowledgement has been placed on record. The details of hearing scheduled are tabulated as under:
Sr. No. Date of hearing Whether notice Remarks Whether was served appellant/AR appeared
18.10.2019 Yes None attended. 2. 07.11.2019 Yes None attended. 3. 22.11.2019 Yes None attended.
4.2 The appellant did not appear for any of the hearings. Therefore, it appears that the appellant is not interested in prosecuting the appeal.
5. Delay in filing Appeal and request for condonation:
5.1 On going through the Form No. 35, it is seen that the demand notice was served on the appellant on 18.12.2018. Therefore, the appellant was required to file the appeal on or before 17.01.2019. However, the appellant has filed the appeal on 09.02.2019. Thus, there was a delay of about 19 days in filing of appeal.
5.2 In column 15 of Form No. 35, the appellant was required to furnish the ground for condonation of the delay. However, the appellant has not done so. Instead, in column 15 the appellant has merely stated as under: "To be submitted at the time of hearing".
3 M/s. Bloomdale Finvest Private Limited
5.3 As mentioned in para 4.1 to 4.2 above, the appellant did not appear for any of the hearings. The appellant has also not furnished any written submission either. Thus the appellant has failed to explain why the delay in filing the appeal should be condoned. Therefore, I decline to condone the delay. Accordingly, the appeal is not admitted.
Against the above order assessee is in appeal before us.
We have heard learned Departmental Representative and perused the record. We find that learned CIT(A) has completely misled himself and mere delay of 19 days, did not mandate him to dismiss the appeal in limine and that also without giving proper opportunity of being heard. Moreover, learned CIT(A) has no power to dismiss the appeal for non-prosecution of appeal by the assessee, as section 251 which deals with power of learned CIT(A) does not provide for dismissal of the appeal for non-prosecution. Moreover proposition that appeal cannot be dismissed for non-prosecution without speaking order on merits is supported by following case laws :- a. CIT Vs. Preamkumar Arjundas Luthra (HUF) (2017) 154 DTR 302(Bom) b. CIT Vs. S. Chennaippa Mudaliar (1969) 74 ITR 1(SC)
Moreover it is settled law that even administrative orders have to be consistent with rules of natural justice as held by Hon'ble Supreme Court in the case of Sahara India Financial Corporation Ltd. (300 ITR 403).
In the background of the aforesaid discussion and precedent, we condon the delay in filing the appeal before learned CIT(A) and direct the learned CIT(A) to pass a speaking order on the merits of the case after giving the assessee proper opportunity of being heard.