SREE MAHABAL INVESTMENTS (BOMBAY) PVT. LTD.,MUMBAI vs. ITO 15(3)(4), MUMBAI

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ITA 6405/MUM/2019Status: DisposedITAT Mumbai29 July 2021AY 2012-133 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal held that the CIT(A) cannot dismiss an appeal for non-prosecution without deciding the issues on merit. The CIT(A) must decide appeals on merits after providing an opportunity of being heard.

What were the facts?

The assessee, engaged in share trading, filed a return of nil income for AY 2012-13. The assessment was completed under section 143(3) r.w.s. 147, determining total income at Rs. 3,26,340/- after disallowing Rs. 10,88,883/- under section 40(a)(ia). The assessee appealed to the CIT(A).

What were the issues?

Whether the CIT(A) can dismiss an appeal ex parte for non-prosecution without deciding the appeal on merits. The scope of powers of the CIT(A) under Section 251 of the Act.

Which sections of the Income-tax Act were involved?

Section 143(3),Section 147,Section 40(a)(ia),Section 251

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “E” BENCH, MUMBAI

Before: SHRI SAKTIJIT DEY & SHRI RAJESH KUMAR

For Appellant: Shri Aditya Ramachandran, (AR)
For Respondent: Shri Vijay Kumar Menon (DR)

Date of hearing 29-06-2021 Date of pronouncement 29-07-2021 O R D E R Per : Saktijit Dey (JM): This is an appeal by the assessee against order dated 14-06-2019 of learned Commissioner of Income Tax (Appeals)-24, Mumbai for the assessment year 2012-13.

2.

In ground 1, assessee has challenged the ex parte disposal of the appeal by learned first appellate authority.

3.

Briefly the facts are, the assessee, a resident company, is stated to be engaged in share trading. For the assessment year under dispute, assessee filed its return of income on 27-08-2013 declaring nil income. Assessment in case of 2 ITA 6405/Mum/2019 the assessee was completed under section 143(3) r.w.s.147 of the Income Tax Act, 1961 vide order dated 28-12-2017, determining the total income at Rs.3,26,340/- after disallowing an amount of Rs.10,88,883/- under section 40(a)(ia) of the Act. Against the assessment order so passed, assessee preferred appeal before learned Commissioner (Appeals). However, by the impugned order, learned Commissioner (Appeals) has dismissed assessee’s appeal.

4.

We have considered rival submissions and perused materials on record. It is very much clear from the impugned order of learned Commissioner (Appeals) that not only he has decided the appeal of the assessee ex parte, but he has dismissed the appeal simply for the reason of non prosecution without deciding the issues on merit. On a careful reading of section 251 of the Act, we are of the view that learned Commissioner (Appeals) has to decide the appeal on merits. He cannot dismiss the appeal in limine merely for the reason of non appearance/non prosecution. Therefore, the impugned order of learned Commissioner (Appeals) is unsustainable. Accordingly, we set aside the impugned order of learned Commissioner (Appeals) with a direction to decide the appeal afresh, on merits, through a speaking order after due opportunity of being heard to the assessee. Grounds are allowed for statistical purposes.

5.

In the result, appeal is allowed for statistical purposes. Order pronounced on 29/07/2021. Sd/- sd/- RAJESH KUMAR SAKTIJIT DEY ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Dt : 29/07/2021 Pavanan

3 ITA 6405/Mum/2019

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