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

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

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.

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.

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