MRS. SULAKSHANA NANCHE,MUMBAI vs. ITO 33 (3)(5), MUMBAI

This appeal is time barred by three days. Ms. Chaitee Londhe appearing on behalf of the assessee made oral prayer for condonation of delay. The ld. Authorized Representative for the assessee submitted that the delay in filing of appeal was caused due to wrong calculation of period of limitation. The delay in filing of the appeal is not intentional or for inaction on the part of appellant/assessee.

Submissions made by ld. Authorized Representative for the assessee heard. The reason for delay in filing of the appeal appears to be bonafide. Hence, the delay is condoned and the appeal is admitted to be heard and disposed off on merits.

The ld. Authorized Representative for the assessee submitted that the impugned order by CIT(A) is an ex-parte order. The CIT(A) has dismissed the appeal for non prosecution. The CIT(A) has also passed the order on merits of the addition. The solitary issue raised in the appeal before the CIT(A) was against adhoc addition of Rs.32,99,494/- made by Assessing Officer under the head Capital Gains. The ld.Authorized Representative of the assessee prayed that an opportunity may be granted to the assessee to place the facts before CIT(A). The assessee has prima- facie good case in her favour. In case an opportunity is given to present the case before the CIT(A), the assessee would be able to make out a favourable case.

On the other hand, Shri Sanjay J. Sethi representing the Department submitted that the notice of hearing was issued to the assessee by CIT(A) multiple times. Despite service of notice the assessee failed to appear before the First Appellate Authority , hence, the CIT(A) was constrained to proceed ex-parte.

Both sides heard, orders of authorities below examined. A perusal of the impugned order reveals that the CIT(A) has dismissed the appeal primarily for non- prosecution. The Tribunal has time and again held that the CIT(A) has no power to dismiss the appeal for non-prosecution or non-appearance [Re: Creative Casuals vs. Addl.CIT, decided on 27/08/2010]. Once an appeal under section 246A of the Income Tax Act, 1961 (in short 'the Act') is filed, the CIT(A) is duty bound to decide the appeal on merits.

It is further observed that the CIT(A) has also given his findings on merits of the issue without considering the report of DVO. The Assessing Officer during the assessment proceeding had referred valuation of property to DVO under section 50C(2) of Income Tax Act,1961 ( in short 'the Act') vide letter dated 23/11/2016.

The assessee is directed to appear before the CIT(A) on service of the notice and co-operate in First Appellate proceedings. The appeal is allowed for statistical purpose in the terms aforesaid.