GALSI FOREIGN LIQUOR OFF SHOP,BURDWAN vs. I.T.O.,WARD-1(4), KOLKATA

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ITA 277/KOL/2020Status: DisposedITAT Kolkata09 July 2020AY 2009-104 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal set aside the ex-parte order of the CIT(Appeals) due to sufficient cause for non-appearance and non-compliance with the mandatory requirements of Section 250(6). The matter was remitted back to the CIT(Appeals) for fresh disposal on merits.

What were the facts?

The assessee's appeal before the CIT(Appeals) was dismissed for non-prosecution. The assessee had a delay in filing the appeal before the ITAT, which was condoned. The CIT(Appeals) order was passed ex-parte without considering the merits.

What were the issues?

Whether the CIT(Appeals) order dismissing the appeal for non-prosecution without considering merits was valid, and if there was sufficient cause for the assessee's non-appearance.

Which sections of the Income-tax Act were involved?

Section 40A(3),Section 250(6)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, KOLKATA ‘C(SMC

Before: Shri P.M. Jagtap, Vice-

This appeal filed by the assessee is directed against the order of ld. Commissioner of Income Tax (Appeals), Burdwan dated 17.07.2019 passed ex-parte, whereby he dismissed the appeal of the assessee for non-prosecution.

2.

At the outset, it is noted that there is a delay of 139 days on the part of the assessee in filing this appeal before the Tribunal. In this regard, the assessee has moved an application seeking condonation of the said delay and keeping in view the reasons given therein, which are duly supported by an affidavit filed by the assessee, I am satisfied that there was a sufficient cause for the delay on the part of the assessee in filing Assessment Year: 2009-2010 Galsi Foreign Liquor Off Shop this appeal before the Tribunal. Even the ld. D.R. has not raised any objection in this regard. The said delay is accordingly condoned and the appeal of the assessee is being disposed of on merit.

3.

The assessee in the present case is a partnership firm, which filed its return of income for the year under consideration on 24.09.2009 declaring total income of Rs.1,34,426/-. In the assessment completed under section 143(3) vide an order dated 17.11.2011, the total income of the assessee was determined by the Assessing Officer at Rs.11,56,104/- after making a disallowance of Rs.10,21,678/- under section 40A(3) of the Income Tax Act, 1961.

4.

The disallowance made by the Assessing Officer under section 40A(3) was challenged by the assessee in the appeal filed before the ld. CIT(Appeals) and since there was no compliance on the part of the assessee to the notices issued by him fixing the said appeal for hearing from time to time, the ld. CIT(Appeals) dismissed the appeal of the assessee for non-prosecution vide his appellate order dated 17.07.2019 passed ex-parte. Aggrieved by the order of the ld. CIT(Appeals), the assessee has preferred this appeal before the Tribunal.

5. I have heard the arguments of both the sides and also perused the relevant material available on record. In support of the preliminary issue raised by the assessee in this appeal challenging the impugned order passed by the ld. CIT(Appeals) ex-parte, the ld. Counsel for the assessee has submitted that the ld. Authorized Representative of the assessee, who was assigned to represent the same before the ld. CIT(Appeals) did not appear at the time of hearing fixed before the ld. CIT(Appeals) and even did not inform the assesese about the same at the relevant time. Keeping in view the submission made by the ld. Counsel for the assessee, I am satisfied that there was a sufficient cause for the non-appearance of the assessee before the ld. CIT(Appeals) when its appeal was fixed for Assessment Year: 2009-2010 Galsi Foreign Liquor Off Shop hearing. Moreover, the ld. CIT(Appeals) as per the provisions of sub- section (6) of section 250 was required to dispose of the appeal of the assessee vide an order in writing stating the points for determination, the decision thereon and the reasons for the decision. It is observed that the impugned order passed by the ld. CIT(Appeals) ex-parte dismissing the appeal of the assessee for non-prosecution without going into the merits of the issues raised in the said appeal does not comply with the mandatory requirements of sub-section (6) of section 250 and even the ld. D.R. has not been able to dispute this position. I, therefore, set aside the impugned order passed by the ld. CIT(Appeals) ex-parte dismissing the appeal of the assessee for non-prosecution and remit the matter back to him for disposing of the appeal of the assessee afresh on merit in accordance with law after giving the assessee one more opportunity of being heard. As undertaken by the ld. Counsel for the assessee, the assessee shall make due compliance before the ld. CIT(Appeals) and shall extend all the possible cooperation in order to enable the ld. CIT(Appeals) to dispose of the appeal afresh expeditiously.

5.

In the result, the appeal of the assessee is treated as allowed for statistical purposes. Order pronounced in the open Court on July 09, 2020.

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