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Income Tax Appellate Tribunal, “SMC” BENCH, MUMBAI
Before: SHRI SAKTIJIT DEY & SHRI N. K. PRADHAN (AACOUNTANT MEMBER)
O R D E R Per Saktijit Dey (JM) This is an appeal by the assessee against order dated 02-05-2019 of learned Commissioner of Income-tax (Appeals)-24, Mumbai for the assessment year 2010-11.
We have heard Shri Bhadresh Joshi, learned Authorised Representative and Ms. Smita Verma, learned Departmental Representative.
The basic grievance of the assessee in the present appeal is against the ex parte disposal of her appeal by learned Commissioner (Appeals), that too, in limine and through a non speaking order.
Briefly the facts are, the assessee is an individual. In the assessment year under dispute, assessee filed her return of income on 29-09-2010 declaring total income of Rs.65,158/-. Assessment in case of the assessee was completed under section 143(3) r.w.s. 147 of the Act vide order dated 8-03-2016 by making certain additions which enhanced the income to Rs.30,27,990/-. Against the assessment order so passed, assessee preferred an appeal before learned Commissioner (Appeals). By the impugned order, learned Commissioner (Appeals), has disposed of assessee’s appeal ex parte by dismissing it without deciding the issues on merit.
Having considered the submissions of the parties, we find that learned Commissioner (Appeals) has disposed of assessee’s appeal ex parte. Though, at paragraph 5.2.1 of the appellate order, learned Commissioner (Appeals) has stated that hearing notices were issued to assessee online and was served on the assessee; however, the learned Counsel appearing for the assessee has disputed this. He has submitted that no such notices alleged to have been sent by learned Commissioner (Appeals) were ever received by the assessee. Be that as it may, it is a fact on record that the appeal of the assessee has been decided ex parte. Further, there is dispute with regard to service of hearing notice issued online. We have further noticed that learned Commissioner (Appeals) has simply dismissed the appeal in limine without deciding the issues / grounds raised
therein, on merits. As per the mandate of section 251(1)(a) of the Act, learned Commissioner (Appeals) has to decide the appeal against an order of assessment by confirming, reducing, enhancing or annulling the assessment. Thus, what the provision empowers the first appellate authority to do is to decide the appeal on merits. That being the case, learned Commissioner (Appeals) cannot dismiss the appeal in limine on the ground of non prosecution, without deciding the issues on merits. For this reason alone, the impugned order of learned Commissioner (Appeals) is legally unsustainable. Therefore, we have no hesitation in setting it aside and directing learned Commissioner (Appeals) to decide assessee’s appeal afresh on merit, after due opportunity of being heard to the assessee. Grounds are allowed for statistical purpose.
6. In the result, appeal is allowed for statistical purposes.
Order pronounced on this 05/03/2021