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Income Tax Appellate Tribunal, “SMC” BENCH, AHMEDABAD
Before: SMT.ANNAPURNA GUPTA
(Applicant) (Responent) : Shri M.K. Patel, Adv. Assessee by Revenue by : Shri Mukesh Sharma, DR सुनवाई क� तार�ख/Date of Hearing : 19/09/2022 घोषणा क� तार�ख /Date of Pronouncement: 28 /09/2022 आदेश/O R D E R The present appeal has been filed by the assessee against order passed by the Commissioner of Income Tax(Appeals)-6, Ahmedabad (in short referred to as ld.CIT(A)) under section 250(6) of the Income Tax Act, 1961 ("the Act" for short), dated 12.12.2018 pertaining to Asst.Year 2015-16.
The assessee has raised the following grounds in his appeal:
“(1) That the learned CIT(A) has grievously erred in law, and on facts, in not providing reasonable and sufficient opportunity of hearing and in deciding the appeal ex-parte. (2) That the learned CIT(A) has grievously erred in law in dismissing the appeal for want of prosecution instead of adjudicating the grounds of appeal on merits.
2 3) That on facts and in law, the learned CIT(A) be directed to decide the ground on merits regarding the addition of Rs.16,38,872/- made u/s 41(1) by the AO. 4) That on facts and in law, the learned CIT(A) be directed to decide the ground on merits regarding the disallowance of expenses of Rs.8,13,773- by the AO.
At the outset, the ld.counsel for the assessee contested the ex parte order of the ld.CIT(A) stating the assessee was not provided reasonable opportunity of hearing to defend its case. He contended that the assessee had attended the assessment proceedings, furnished details as and when called for and the Ld.CIT(A) simply dismissed the appeal summarily without even referring to the facts and issues raised in the grounds of appeal. He contended that even while dismissing the appeal for non prosecution it is incumbent upon the Ld.CIT(A) to dispose of the appeal on merits. Accordingly, he prayed that the order of the ld.CIT(A) be restored back to his file for adjudication on merits. He also relied on the decision of ITAT, Ahmedabad bench in the case of Shri Poojan Kinnerkumar Patel Vs. ACiT, dated 19.6.2015 for the proposition that irrespective of the non-appearance of the assessee before the CIT(A), the CIT(A) ought to have dealt with the issues so raised by the assessee on merits and ought to have passed speaking order in accordance with the law.
On the other hand, the ld.DR supported the orders of authorities below.
I have heard both the parties and gone through the impugned orders. A perusal of the Ld.CIT(A)’s order would indicate that he had issued notices to the assessee for arguing the appeal on three occasions as mentioned in his impugned order, but the assessee did not appear nor filed details/explanation during the appellate
3 proceedings, accordingly, the ld.CIT(A) after placing reliance upon some case laws held that since the assessee was not interested in prosecuting his appeal, therefore, the appeal of the assessee was dismissed for want of prosecution. In this connection, it is pertinent to take note of sub-section (6) of section 250 of the Income Tax Act, 1961 which reads as under: “6) 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.”
On perusal of section would indicate that the ld.CIT(A) was required to formulate points in dispute, and thereafter record reasons on such points. No doubt the ld.CIT(A) has given opportunities to the assessee to attend the hearing and defend his case, but the assessee did not avail and remained absent. But this very fact would not empower the ld.CIT(A) to pass an ex parte order without going to the merits of the case and without making a speaking order, because, rationale for passing a speaking order based on the material available on record is that, such order is subject to further appeal, and such order would enable the litigant and the appellate authority to know the exact point of dispute for adjudication. The fact that opportunity is not availed of in a particular case, will not entitle the Ld.CIT(A) not to decide the case on merit on the basis of the material available on record. In the instant case, even if the assessee did not participate, the ld.CIT(A) ought to have gone through the assessment record and thereafter formed the point in dispute, and should have recorded reasons in support of his conclusions on those points. The ld.CIT(A) failed to adhere to the mandatory procedure, hence his order is not sustainable. I allow this preliminary ground of appeal and set aside the impugned order of the ld.CIT(A) for fresh adjudication on merit.
Needless to mention here, the assessee shall cooperate in the set aside appellate proceeding and would not seek unnecessary adjournment nor indulge in delay tactics.
In the result, the appeal of the assessee is allowed for statistical purpose.