SANJAY KUMAR,NOIDA vs. ITO, WARD-3(3), NOIDA

Both appeals filed by the different assessees, were heard together and are being disposed off by this consolidated order for the sake of convenience.

The Ld.AR for the assessee pointed out that since the assessee was an agriculturist and had no source of income; hence, there is no requirement to file return of income. Hence, there was no default in payment of advance tax. The CIT(A) had dismissed the appeal of the assessee on the ground that the assessee had not paid any advance tax.

On the perusal of record, it transpires that the assessee had no taxable income where the assessee had not filed any return of income on the ground that he had no source of income except agricultural income, the order of the CIT(A) in holding the assesse to be in default in view of section 249(4) of the Act is not correct. The CIT(A) had not decided the issue on merits.

After hearing both parties & perused the record and under the provisions of Section 250(6) of the Income tax Act, 1961 (in short “Act”), it & 6044/Del/2018 Assessment Year 2010-11 is incumbent upon the CIT(A) to decide the appeals after hearing the parties and state the points for determination, the decision thereon and also the reasons for the decision. While deciding the appeals, CIT(A) has no power to dismiss the appeals for non prosecution by relying on the ratio/s laid down in CIT vs. B.N. Bhattacharya & Another 118 ITR 461 (SC) and Late Tukoji Rao Holker vs. CWT 223 ITR 480 (MP). In these facts and circumstances, where the CIT(A) had dismissed the appeals by applying the above said ratios, the order of the learned CIT(A) suffers from infirmity. The CIT(A) while deciding the issue on merits have also to give reasons for coming to the conclusion and in the absence of the same, the order of the CIT(A) again suffers from infirmity. In the present appeals, I find that the CIT(A) has dismissed the appeals ex-parte qua the assessee and had failed to decide the appeals by passing reasoned assessment order.

Accordingly, I set aside the matter back to the file of the CIT(A) with direction to the CIT(A) to decide the issue on merits by a reasoned order, after affording reasonable opportunity of hearing to the assessee. Further the assessee is also directed to appear before the CIT(A) and participate in the appellate proceedings. The appeals are thus decided on this preliminary issue without going into the merits of the addition.

Hence these appeals are restored back to the file of CIT(A) to decide the issue on merits after affording reasonable opportunity of hearing to the assessee. The assessee is also directed to comply with notices issued by & 6044/Del/2018 Assessment Year 2010-11 the CIT(A). The preliminary issue raised in these appeals is thus decided in favour of assessee. Since the appeals are being decided on the preliminary issue, we are not addressing the issue raised on merit.

In the result, both appeals of the assessee are allowed.