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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI B.M. BIYANI & SHRI PARESH M. JOSHI
आदेश/O R D E R
Per B.M. Biyani, A.M.:
Feeling aggrieved by order of first appeal dated 20.02.2019 in Appeal No. IT- 10867/17-18 passed by learned Commissioner of Income-Tax (Appeals)-II, Indore [“CIT(A)”] which in turn arises out of assessment-order dated 27.12.2017 passed by learned ACIT, Circle-4(1), Indore [“AO”] u/s 254 r.w.s. 143(3) of Income-tax Act, 1961 [“the Act”] for Assessment-Year [“AY”] 2008- 09, the assessee has filed this appeal.
The background facts leading to present appeal before us are as under:
Page 1 of 7 a total income of Rs. 28,27,160/-. Subsequently, a search u/s 132 was carried out and assessment u/s 153A was made upon assessee vide order dated 30.12.2011 at a total income of Rs. 65,91,95,580/-.
Aggrieved by AO’s order, the assessee carried matter in first-appeal.
Thereafter, both the revenue and assessee filed their respective appeals to ITAT, Indore bench registered as “IT(SS)A No.
183/Ind/2013 & IT(SS)A No. 250/Ind/2013”. The ITAT, Indore bench decided those appeals vide order dated 17.05.2016 setting aside certain issues and remanding back to the AO for a fresh adjudication.
(ii) Thereafter, the AO passed a fresh assessment-order dated 27.12.2017 u/s 254 r.w.s. 143(3) re-determining total income at Rs.
5,36,68,995/- after adjudication of set aside asides. Aggrieved by this order of fresh assessment, the assessee again went in first-appeal before CIT(A) in Appeal No. IT-10867/17-18. The CIT(A), vide impugned order dated 20.02.2019, dismissed assessee’s appeal for non-prosecution and upheld AO’s order. Against the said order of CIT(A) dated 20.02.2019, the assessee filed present appeal No. ITA
234/Ind/2024 but there was a delay of 4 years and 337 days. The ITAT, vide order dated 23.08.2024, dismissed assessee’s appeal in limine as time-barred.
Hon’ble High Court of Madhya Pradesh in Income-tax Appeal No.
1 of 2025. The Hon’ble High Court disposed of assessee’s appeal through judgement dated 01.04.2025 in following manner:
“13. Hence, this Court finds that the appellant has been able to put forth "sufficient cause" for the delay in filing the appeal before ITAT.
Accordingly, the order dated 23.08.2024 passed by the Income Tax Appellate Tribunal, Indore Bench, Indore in is hereby set aside.
The delay in filing an appeal before the ITAT is herby condoned.
The matter is remanded back to Income Tax Appellate Tribunal, Indore Bench, Indore and it is directed that the appeal shall be decided afresh in accordance with law on merits after affording reasonable opportunity of hearing to both the parties.”
(iv) Thus, in pursuance of above direction of Hon’ble High Court, the present appeal has again come before this bench for a fresh adjudication.
The assessee has raised as many as 11 grounds in Form No. 36 (Appeal Memo) but during hearing, the Ld. AR initially advanced first two grounds reading as under:
“1. That, the learned CIT(A) grossly erred, both on facts and in law, in passing the ex-parte order without giving proper and effective opportunity of being heard to the appellant. 2.That, without prejudice to the above, the learned CIT(A) grossly erred in not adjudicating the appeal on merits of the case.”
Page 3 of 7 order passed by CIT(A):
“2. The case was fixed/adjourned for hearing on 17.12.2018, 15.01.2019, 07.02.2019 & 20.02.2019. On the dates of hearing, neither anybody attended nor filed any written submission. 2.1 It seems that the appellant is not interested to pursue its appeal. Therefore this appeal cannot be kept pending adjudication for indefinite period. Mere filing of appeal is not enough rather it requires effective prosecution also. The appellant has also not filed any information with this office. In view of these facts, I am of the considered view that the appeal of the appellant is liable to be dismissed. This view is supported by many judicial pronouncements which are as under :- (i) CIT Vs. B. No. Bhattachargee 118 ITR 461 (ii) Estate of late Tukojirao Holkar Vs. CWT 223 ITR 480 (ii) (iii) CIT Vs. Multiplan India Ltd. 38 ITD 320 (Del) 2.2 However, in the interest of natural justice, I have gone through the assessment order and grounds of appeal
. After taking into account the totality of the facts and circumstances of the case, grounds of appeal at Sr.No.1 to 3 of grounds of appeal are hereby dismissed for the reasons that the facts and findings brought out by the AO in the assessment order have not been controverted by the appellant. Therefore, the AO has been found justified in making the various additions as per the assessment order. Therefore, all the grounds of appeal are dismissed.
3. As a result, the appeal is dismissed.”
5. Ld. AR thereafter submitted that the section 250(6) of the Income-tax Act, 1961 provides “The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision.”. He submitted that in present case, the Ld. CIT(A) has dismissed assessee’s first appeal and Page 4 of 7 dates of hearing but still without complying with the mandate of section 250(6).
6. He further drew us to following para of aforesaid Judgement dated 01.04.2025 of Hon’ble High Court wherein the assessee made a vehement submission that at no point of time, the assessee/appellant received any notice from the CIT(A) and such a submission was accepted by Hon’ble High Court:
4. The learned counsel for the appellant submits that earlier, he used to reside at 29-30 Paliwal Nagar, Indore alongwith the family of his real brother for the last 15 years. In the income tax record, same address was disclosed. However, due to misfortune of the appellant, the brother of the assessee was dragged into various civil and criminal litigations. In view of the aforesaid, the appellant alongwith the family members were also harassed by various creditors and the Government Department including death threats. Various criminal cases were also registered against the appellant. Because of this, the appellant as well as the family of the appellant had to move to Mumbai. During 2018 to 2024 brother of the appellant was either missing, absconding or imprisoned. The appellant in such circumstances could not coordinate properly with his tax consultants. At no point of time, the appellant received any notice from the CIT(A) as well as the order passed by the CIT(A) on 20.02.2019. This fact came to the knowledge of the appellant in the month of year 2024 and thereafter, without causing any delay, appeal was filed being aggrieved by the order of the CIT(A) before the ITAT on 22.03.2024. Out of the delay of 1797 days, the delay between 15.03.2020 to 30.05.2022 (period covered by Covid-19 pandemic) and also looking to the fact that the Apex Court on its own motion in SLP No.3/2020 had condoned the delay due to Covid- 19 pandemic, meaning thereby only 990 days remained to be explained.
7. Thus, with reference to above facts/documents, Ld. AR contended that the impugned order passed by CIT(A) is neither in conformity with the Page 5 of 7 non-participation by assessee in the hearings fixed by CIT(A) was non- receipt of notices of hearing which has also been accepted by Hon’ble High Court. Therefore, Ld. AR prayed that the order of CIT(A) deserves to be set aside and the matter is fit for restoring to him for an apt adjudication on merit. Ld. AR acknowledges that the assessee is ready and willing to make a proper representation before CIT(A) if an opportunity is given and hence prays that the present matter should be remanded to CIT(A).
8. Per contra, Ld. DR for revenue submitted that the CIT(A) has passed a sufficient order in the situation. He submitted that when the assessee did not participate in the hearings fixed by CIT(A), the CIT(A) had no option except to uphold AO’s order on the basis of material available with him.
Therefore, he prayed that the order of CIT(A) must be upheld.
We have considered rival submissions of both sides and carefully perused the case record. After a careful consideration, we find sufficient weightage in the submission of Ld. AR for assessee that the CIT(A) has summarily upheld the AO’s order without passing an apt order in terms of section 250(6) of the Act. Further, the non-participation by assessee before CIT(A) was due to non-receipt of notices which has been taken cognizance by Hon’ble High Court. Therefore, in this situation, we find a considerable force in the submission of Ld. AR for assessee. Hence, keeping in view the facts of case and having regard to the principle of natural justice and also Page 6 of 7 matter is restored at the level of CIT(A), we remand this matter back to the file of CIT(A) for adjudication afresh. The CIT(A) shall give necessary opportunity of hearing to assessee and pass an appropriate order uninfluenced by his earlier order. The assessee is also directed to remain vigilant and ensure participation in the hearings as may be fixed by CIT(A) and do not seek unnecessary adjournments failing which the CIT(A) shall be at liberty to pass appropriate order in accordance with law. Ordered accordingly.
Resultantly, this appeal is allowed for statistical purpose.
Order pronounced in open court on 22/09/2025