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Income Tax Appellate Tribunal, DELHI BENCH “SMC”, NEW DELHI
Before: SHRI H.S. SIDHU
ORDER This Appeal is filed by the Assessee emanate out of Order dated 05.9.2017 passed by the Ld. Commissioner of Income Tax (Appeals)-2, New Delhi pertaining to the Asstt. Year 2013-14. The assessee has raised as many as 05 grounds in detail, but the effective issue involved in the appeal is relating to not giving proper opportunity of being heard to the assessee and Ld. CIT(A) has not dealt the matter on merit of the case and passed the non-speaking order. For the sake of brevity, the detailed grounds are not repeated here.
At the time of hearing, Ld. Counsel of the assessee reiterated the contentions raised in the grounds of appeal and requested to set aside the matter to the file of the Ld. CIT(A) to decide the same afresh, because no proper opportunity was given to the assessee and the appeal of the Assessee was dismissed on account of non-prosecution. 1
3. Ld. DR has stated that assessee remained non-cooperative before the AO as well as before the Ld. CIT(A) and is not entitled for any lenient view from this Bench. Hence, he requested that the Appeal filed by the Assessee may be dismissed.
4. After hearing both the parties and perusing the impugned order, I am of the view that there is no doubt assessee remained non-cooperative before the Ld. CIT(A) and the Ld. CIT(A) has mentioned the same in his order dated 05.9.2017 vide para no. 2.0 to 4.0 at page no. 2 to 3, which is reproduced hereunder:-
“2.0 The appeal of the appellant was fixed for hearing by issue of notices on several dates as under:-
Notice dated 09/06/2017 fixing the hearing for 3010612017 Notice dated 12/07/2017 fixing the hearing for 26/0712017 Notice dated 01/08/2017 fixing the hearing for 21/08/2017 (Final Opportunity)
3.0 On the above dates of hearing, neither anybody attended the proceeding nor was any adjournment application/detail filed. All the notices were sent by speed post to the addresses given by the appellant in its form no. 35 while filing the appeal i.e. 1309, Chiranjiv Tower, 43, Nehru Place, New De}hi- 110019 & 2nd Floor, Plot No. 107, Sector-44, Gurgaon-122003. These notices were not received back unserved, which means that they were served upon the appellant. However, none attended on behalf of appellant at the time of hearing of the appeal despite service of the notices. It is also worth mentioning that even the 2 assessment order was not uploaded by the appellant while filing the appeal online, with the intention that the undersigned cannot adjudicate the case on merits, This office has received by speed post on 23.08.2017, a paper book from the appellant's AR, containing copies of replies submitted by the appellant before the Assessing Officer during the course of assessment proceedings. However the paper book is not accompanied by any submissions or arguments of the appellant in support of its appeal/grounds of appeal. Neither has the hard copy of the impugned order been filed by the appellant. It is, therefore, clear that the 'appellant is not interested in prosecuting the appeal. In this view, I find support from the following decisions:
(i) In the case of CIT vs. B.N. Bhattacharya & others, 118ITR 461 wherein their Lordships have held that:
"The appeal does not mean merely filing of the appeal but effectively pursuing it."
(ii) In the case of Estate of late Tukojirao Holkar vs. CWT; 223 ITR 480 (MP) while dismissing the reference made at the instance of the assessee in default, following observation was made in their order:
“If the party, at whose instance the reference is made, fails to appear at the hearing, or fails in taking steps for preparation of the paper books so as to enable hearing of the reference, the court is not bound to answer the reference.”
Considering the above, as the appellant is not interested in prosecuting the appeal, therefore, the appeal of the appellant is dismissed in limine.”
After going through the above finding of the Ld. CIT(A), I am of the view that there is no doubt that assessee remained non-cooperative before the Revenue Authorities, but I am of the opinion that Ld. CIT(A) has confirmed the assessment order in a routine manner, without discussing in detail the facts and circumstance of the case and also did not deal the issue on merit and passed a non-speaking order and dismissed the appeal of the assessee on non- prosecution. It is a settled law that even an administrative order has to be speaking one.
5.1 In this regard I draw support from Hon’ble Apex Court in the case M/s Sahara India (Farms) Vs. CIT & Anr. in [2008] 300 ITR 403 has held that even “an administrative order has to be consistent with the rules of natural justice”.
5.2 I further draw support from the Apex Court decision in the case of Kapurchand Shrimal Vs. CIT, 131 ITR 451 wherein it was held that the appellate authority has jurisdiction as well as the duty to correct the errors in the proceedings under appeal and to issue of necessary, appropriate directions to the authority against whose decision appeal is preferred to dispose of the whole or any part of the mater afresh, unless forbidden from doing so by statute.
In the background of the aforesaid discussions and precedents, I remit back the issues to the files of the Ld. Commissioner of Income Tax (Appeals) to consider each and every aspects of the issues involved in the Appeal and decide the same afresh, after passing a speaking order, after considering all the evidences/documents. Needless to add that the assessee should be given adequate opportunity of being heard.
In the result, the Appeal filed by the Assessee stands allowed for statistical purposes .