BRIJ BHUSHAN KUMAR,GHAZIABAD vs. ITO, WARD- 1(5), GHAZIABAD

In this appeal, the assessee is aggrieved by the order of CIT(A) for deciding the appeal ex-parte qua the assessee and without going into the merits of the addition.

The learned AR for the assessee pointed out that the CIT(A) has passed the ex-parte order without allowing sufficient opportunity of hearing and without going into the merits of the case.

The learned DR for the Revenue on the other hand pointed out that sufficient opportunity has been afforded to the assessee.

We have heard the rival contentions and perused the record. Under the provisions of Section 250(6) of the Income tax Act, 1961 (in short “Act”), it is incumbent upon the CIT(A) to decide the appeal after hearing the parties and state the points for determination, the decision thereon and also the reasons for the decision. While deciding the appeal, CIT(A) has no power to dismiss the appeal 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 appeal 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 appeal, we find that the CIT(A) has dismissed the appeal ex-parte qua the assessee and had failed to decide the appeal by passing reasoned assessment order.

Accordingly, we 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 appeal is thus decided on this preliminary issue without going into the merits of the addition.

The Ld. AR for the assessee pointed out that there was delay in e- filing of appeal before the CIT(A) by five months. The Ld. AR for the assessee has pointed out that the manual appeal is filed in time and the CIT(A) vide separate order has dismissed the said manual appeal filed by the assessee observing that whenever the assessee e-files the appeal, the same shall be taken on record. However, while deciding the appeal which was electronically filed by the assessee, the delay of five months has not been condoned and the appeal is decided ex-parte qua the assessee. We find no merit in the said order of the CIT(A), we accordingly condone the delay of five months and place the appeal before the CIT(A) to decide the issue on merits in accordance with law.

Hence this appeal is 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 the CIT(A). The preliminary issue raised in this appeal is thus decided in favour of assessee. Since the appeal is being decided on the preliminary issue, we are not addressing the issue raised on merit.

In the result, this appeal of the assessee is allowed.