LIPI BUILDCON PVT. LTD,NEW DELHI vs. ITO WARD 15(3), NEW DELHI

For the sake of convenience, both these appeals were heard together and are being disposed of by this common order.

None appeared on behalf of the assessee and it was noticed that the notice issued by the Registry through RPAD has come back with the postal remark ‘addressee left.’ Since the ld.CIT(A) in the ex parte order passed by him has followed the decision of the Tribunal in the case of CIT vs. Multiplan India (P.) Ltd, 38 ITD 320 (Del.) and the decision of the Hon’ble Supreme Court in the case of CIT vs. B.N. Bhattacharjee & Anr., 118 ITR 461 (SC) and various other decisions, therefore, these appeals were heard on the basis of the material available on record and after hearing the ld. DR.

So far as Lipi Buildcon Pvt. Ltd. is concerned, i.e., in 31.03.2007 declaring a loss of Rs.583/-. The AO, in the order passed u/s 143(3), made an addition of Rs.15 lakhs u/s 68 of the Act which was deleted by the CIT(A). On appeal filed by the Revenue, the Tribunal restored the issue to the file of the AO for fresh adjudication. Subsequently, the AO, in the order passed u/s 254 of the Act, determined the total income at Rs.15,25,376/- wherein he retained the addition of Rs.15 lakhs made u/s 68 of the Act and also the income earlier determined u/s 250 of Rs.25,376/-. Since none appeared before the CIT(A), the ld.CIT(A), in the ex parte order, passed by him, sustained the addition made by the AO.

Similarly, in the case of Lipi Softech Pvt. Ltd., i.e., in the assessee filed its return of income on 29th March, 2007 declaring a loss of Rs.15 lakhs and the AO completed the assessment u/s 143(3) wherein he made an addition of Rs.8 lakhs u/s 68 of the Act. The ld. CIT(A) deleted the addition and on appeal filed by the Revenue, the Tribunal restored the issue to the file of the AO for fresh adjudication. The AO, thereafter, completed the assessment determining the total income at Rs.8,05,755/- wherein he retained the addition of Rs.8 lakhs earlier made by the AO u/s 68 of the Act and also retained the income u/s 250 of the Act of Rs.5,755/- determined earlier by the AO. In appeal, the ld.CIT(A), in the ex parte order passed by him, sustained the addition made by the AO due to non-prosecution.

Aggrieved with such orders of the CIT(A), the respective assesses are in appeal before the Tribunal.

I have heard the ld. DR and perused the record. It is an admitted fact that there was no compliance from the side of the assessee before the CIT(A) for which the ld. CIT(A) in both the appeals has sustained the addition made by the AO. As per the provisions of section 250(4), the ld.CIT(A) before disposing of any appeal may make such further enquiry as he thinks fit or may direct the AO to make further enquiry and report the same to him. As per the provisions of section 250(6), the ld.CIT(A) while disposing of the appeal shall state the points for determination, the decision thereon and the reason for the decision. He simply 3 cannot dismiss the appeal for non-prosecution. Since, in the instant case, the ld.CIT(A) has not passed a speaking order in both the appeals and has summarily dismissed the appeals due to non-prosecution, therefore, I deem it proper to restore the issue to the file of the CIT(A) with a direction to adjudicate the issue afresh by passing a speaking order after giving one final opportunity to the assessee to substantiate its case. I hold and direct accordingly.

In the result, the appeals filed by the respective assessees are allowed for statistical purposes. The decision was pronounced in the open court on 13.03.2020.