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Facts
The assessee, a Cooperative Society, filed a NIL return for AY 2012-13 claiming a deduction under Section 80P of the Income-tax Act. The Assessing Officer completed assessment under Section 143(3), assessing the total income at ₹13,43,638/- against the returned NIL income. The CIT(A) subsequently dismissed the assessee's first appeal ex-parte due to non-prosecution after issuing multiple notices, leading the assessee to appeal to the Tribunal with a delay of 376 days.
Held
The Tribunal condoned the delay in filing the appeal after finding sufficient cause. It held that the CIT(A) does not possess the power to dismiss an appeal merely for non-prosecution and is statutorily obligated to decide the appeal on its merits as per Sections 250(6), 251(1)(a), (b), and 251(2) of the Act. Consequently, the Tribunal set aside the CIT(A)'s ex-parte order and remanded the case for a fresh adjudication de-novo on merits.
Key Issues
1. Condonation of delay in filing the appeal to the Tribunal. 2. Legality of the CIT(A) dismissing an appeal ex-parte for non-prosecution without deciding on merits.
Sections Cited
Section 250, Section 251, Section 143, Section 80P, Section 253
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, PANAJI BENCH, GOA
Before: HON’BLE SHRI PAVAN KUMAR GADALE & SHRI G. D. PADMAHSHALI
Appearances Assessee by : Mr Pramod Vaidya [‘Ld. AR’] Revenue by : Ms Rijjula Uniyal[‘Ld. DR’] Date of conclusive Hearing : 09/12/2025 Date of Pronouncement : 16/12/2025 ORDER PER G. D. PADMAHSHALI, AM; The present appeal is filed by the assessee against DIN & Order No. ITBA/CIT(A)/S/250/2023-24/1061816021(1) dt. 01/03/2024 passed u/s 250 of the Income-tax Act, 1961 [for short ‘the Act’] by the Addl./Jt. Commissioner of Income Tax Appeals-1, Noida [for short ‘NFAC’] which in turn ascended out of order of assessment passed u/s 143(1) by the Income Tax Officer, Ward-1(3), Belgaum [for short ‘AO’] in relation to assessment year 2012-13 [for short ‘AY’] ITAT-Panaji Page 1 of 5
Jai Hind Souharda Sahakari Sangh Niyamit Vs. ITO AY: 2012-13 2. The present appeal is filed with a delay of 376 days. The petition for condonation of delay is supported by an affidavits dt. 05/06/2025 & 04/11/2025, wherein cause of delay is explained. The reasons stated therein and explained in physical hearing establishes ‘sufficient cause’ and thus finds merits for condonation in view of the parameters laid in ‘Vijay Vishin Meghani Vs. DCIT & Anr’ reported 398 ITR 250 (Bom) and ‘Collector, Land Acquisition, Anantnag and Anr. Vs Ms Katiji and Others’ reported at 167 ITR 5 (SC). In view thereof in the larger interest of judice we deem it fit to condone delay in instituting the present appeal u/s 253(1) of the Act and proceed to adjudicate limited issue of ex-parte dismissal of first appeal by the Ld. CIT(A). Recording the same, advanced accordingly.
Briefly stated facts of the case are that; the assessee is a Cooperative Society established under the provisions of State Co- operative Societies Act. The assessee filed its return of income on 31/07/2012 declaring NIL income after claiming a deduction of ₹12,13,638/- u/s 80P of the Act. The case of the assessee selected for scrutiny and consequential assessment was completed by an order dt. 28/08/2014 passed u/s 143(3) of the Act wherein total income of the assessee for the year under consideration was assessed to tax at ₹13,43,638/- as against returned NIL income. ITAT-Panaji Page 2 of 5
Jai Hind Souharda Sahakari Sangh Niyamit Vs. ITO AY: 2012-13 4. Aggrieved assessee approached the Ld. CIT(A). The Ld. CIT(A) issued notices on 13/09/2019, 20/01/2021, 07/02/2022, 07/02/2024 & 22/02/2024 to the assessee through ITBA portal which were neither attended nor replied. In the event of assessee’s failure to respond to former notices, adduce documentary evidence in support of claims/grounds etc., the Ld. CIT(A) placing reliance on ‘CIT Vs B N Bhattacharya [1977, 118 ITR 461 (SC)] dismissed the appeal ex-parte for non-prosecution. Further aggrieved, the assessee came in present appeal before the Tribunal.
Without touching merits & grounds of appeal we have heard the rival parties on former limited issue and subject to rule 18 of ITAT- Rules, 1963 perused the material placed on records and considered the facts in the light of settled position of law.
6. We noted that, during the course of first appellate proceedings the Ld. CIT(A) issued as many as five notices over a period of five years which remained unattended. In the event of failure on the part of appellant to respond other such notices coupled with absence of evidence in support of grounds raised in Form No 35 etc., the Ld. CIT(A) was constrained to proceed ex-parte and culminate the proceedings without going into the merits.
ITAT-Panaji Page 3 of 5
Jai Hind Souharda Sahakari Sangh Niyamit Vs. ITO AY: 2012-13 7. We note that, while dealing with the appeal for passing an order u/s 250(6) of the Act, the Ld. CIT(A) in view of prescription of Section 251(1)(a) and (b) and Explanation to Section 251(2) of the Act was required to apply his mind to all the issues which arise from the impugned order before him whether or not the same has been raised in form no 35. The law does not empower the Ld. CIT(A) to dismiss the appeal for non-prosecution in limine. Since, the statute did not provide for dismissal of appeal in limine for non-prosecution, we find the impugned action of the Ld. CIT(A) is inconsonance with the provisions of statute which otherwise obligates disposal of the appeal on merits even in case of non-prosecution. This view of the bench finds strength in the landmark judgement of the Hon’ble Supreme Court rendered in ‘Chandra Kishore Jha Vs Mahavir Prasad’ [1999, 8 SCC 266 (SC)], wherein their Hon’ble Lordships have categorically held that ‘if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner’.
The issue of ex-parte dismissal of appeal without adjudicating on merits came for consideration before the Hon’ble Jurisdictional Bombay High Court in ‘CIT Vs Premkumar Arjundas Luthra HUF’ ITAT-Panaji Page 4 of 5 para 8 have categorically held that, the first appellate authority does not have the power to dismiss an appeal for non-prosecution. Even in case of ex-parte adjudication the CIT(A) must decide the appeal on merits considering all relevant facts and evidence.
The impugned action of the Ld. CIT(A) in view of the aforestated discussion and judicial precedents amounted to outdoing the provisions of section 251 of the Act, thus has also suffered from compliance of s/s (6) of section 250 of the Act. For the reasons without offering any comments on merits, we set-aside the impugned order and remand the same to the stage of its institution with a direction deal therewith de-novo on merits and pass speaking order in terms of section 250(6) of the Act.
In result, the appeal is allowed for statistical purposes. In terms of rule 34 of ITAT Rules, the order pronounced in the open court on the date mentioned hereinbefore.