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Income Tax Appellate Tribunal, “SMC” BENCH, MUMBAI
Before: SRI MAHAVIR SINGH
O R D E R महावीर स िंह, न्याययक दस्य/ PER MAHAVIR SINGH, JM: This appeal by the assessee is arising out of the order of Commissioner of Income Tax (Appeals)-3, Mumbai [in short CIT(A)], in appeal No. 237-THN/15-16 vide dated 05.12.2017. The Assessment was framed by the Income Tax Officer, Ward-4(1) Mumbai (in short ‘ITO/ AO’) for the A.Y. 2012-13 vide dated 30.03.2015 under section 143(3) of the Income Tax Act, 1961 (hereinafter ‘the Act’).
2. At the outset, the learned counsel for the assessee drew my attention to the order of CIT(A) dated 05.12.2017 and stated that there is no discussion on merits and hence, the order is bad in law. I have gone through the grounds raised which reads as under: - “1. The learned CIT(A) has erred in law & on facts in upholding the Learned AO’s action of disallowing advertisement expenses to the tune of Rs. 2,08,153/- under section 37(1) of the IT Act, 1961, which is bad in law.
The learned CIT(A) has erred in law & on facts in upholding the learned AO’s action of disallowing repairs & maintenance expenses to the tune of ₹ 12,84,530/- under section 37(1) of the Act, 1961, which is band in law.”
When the order of CIT(A) was confronted to the learned Sr. DR Shri BS Bist, he could not controvert that the order of CIT(A) is totally non- speaking. The relevant findings of CIT(A) are simply confirming the order of AO in Para No. 6 as under: - “6.0 Ground Nes.2 and 3 are directed against the disallowance of expenses of Rs. 2,08,153/- under the head advertisement and Rs. 12,84,530/- under repairs and maintenance, therefore, these grounds are taken up together for the sake of convenience.
I have carefully considered the submissions of the appellant, the observations of the AO in the assessment order; case laws relied upon by the appellant and the facts of the case.
(i) The disallowances/additions made by the AO are Justified because against the income from House Property, dividend Income and Interest on income tax refund, the claim of expenses under the head advertisement & repairs and maintenance to building are not allowable as there was no business activity to claim the such aforesaid expenditure. In this regard, the AO has elaborately discussed from Para 5 to Para 8 in the assessment order.”
I am of the view where an appeal has been disposed off, even though on merits, without taking the relevant facts into consideration, an application for setting aside is maintenable. In other words, the appellate authority has no jurisdiction to dismiss the appeal without a speaking order and moreover it is bound to decide the appeal on merits by a speaking order even in the absence of the assessee. I find that none of the principle was followed. Hence, I set aside the order of CIT(A) and remand the same back to his file for allowing reasonable opportunity of being heard to the assessee and also passed a speaking order on merits.
In the result, the appeal of assessee is allowed for statistical purposes.