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Facts
The assessee filed an appeal against an assessment order which made additions of Rs. 36,38,250/- under Section 144 r.w. Section 147 of the Income Tax Act. The first appeal was summarily dismissed by the Commissioner of Income Tax (Appeals) for non-prosecution and non-compliance with statutory notices, without any discussion on merits.
Held
The Tribunal held that the CIT(A) is obligated under Section 250(6) of the Act to state points for determination and render a decision with reasons, even in ex parte orders, and thus cannot dismiss an appeal for non-prosecution without addressing its merits. Citing a Bombay High Court judgment, the Tribunal set aside the CIT(A)'s order and restored the matter for fresh adjudication by the CIT(A), granting the assessee a proper opportunity of hearing.
Key Issues
Whether the Commissioner of Income Tax (Appeals) has the power to dismiss an appeal for non-prosecution without addressing the grounds on merits.
Sections Cited
Section 144 of the Income Tax Act, 1961, Section 147 of the Income Tax Act, 1961, Section 250(6) of the Income Tax Act, 1961
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Income Tax Appellate Tribunal, DELHI BENCH “SMC” DELHI
Before: SHRI PRADIP KUMAR KEDIA
PER PRADIP KUMAR KEDIA - A.M.: The captioned appeal has been filed by the assessee against the order of the Commissioner of Income Tax (Appeals)-National Faceless Appeal Centre (NFAC), Delhi [‘CIT(A)’ in short] dated 01.02.2024 arising from the assessment order dated 13.12.2019 passed by the Assessing Officer (AO) under Section 144 r.w. Section 147 of the Income Tax Act, 1961 (the Act) concerning A.Y. 2012-13.
As per its grounds of appeal, the assessee has challenged the 2. additions of Rs.36,38,250/- made by the AO. The assessee has further challenged the summary disposal of first appeal by the CIT(A) on account of non prosecution.
When the matter was called for hearing, none attended for the assessee. Accordingly, the matter is proceeded ex-parte.
On perusal of the order of the CIT(A), I straightaway notice 4. that the CIT(A) has dismissed the appeal before it for want of prosecution and non compliance of statutory notices by a very cryptic order without any discussion on merit. The CIT(A) has declined to entertain the essentially adjournment invoked the doctrine of vigilantibus non dormientibus wherein its is ordained so- • Law will help only those who are vigilant. Law will not assist those who are careless of his/her right. In order to claim one’s right, she/he must be watchful of his/her right. Only those persons, who are watchful and careful of using his/her rights, are entitled to the benefits of law. • A person who has kept mum during the statutory period cannot claim for the enforcement of right after the statutory limitation.
I straightway refer to Section 250(6) of the Act which enjoins that the CIT(A) shall state the points for determination before it and the decision shall be rendered on such points along with reasons for the decision. Thus, it is incumbent upon the CIT(A) to deal with the grounds on merits even in ex parte order. In view of Section 250(6) of the Act, the CIT(A) has no power to dismiss an appeal on account of non-prosecution. This view is also taken by the Hon’ble Bombay High Court in case of CIT vs. Premkumar Arjundas Luthra HUF (2017) 291 CTR 614 (Bom.). A bare glance of the order of the CIT(A) shows that CIT(A) has not addressed itself on the various points placed for its determination at all and dismissed the appeal of assessee for default in non- appearance. Needless to say, the CIT(A) plays role of both adjudicating authority as well as appellate authority. Thus, the CIT(A) could not have shunned the appeal for non-compliance without addressing the issue on merits.
In the totality of the circumstances, I consider it just and expedient to restore the matter back to the CIT(A) in the larger interest of justice with a view to enable the assessee to avail proper opportunity for disposal of appeal by the CIT(A) on various points. Needless to say, the assessee shall extend full co- operation to the CIT(A) without any demur, failing which, the CIT(A) shall be at liberty to conclude the appellate proceedings in accordance with law. Hence, the order of the CIT(A) appealed against, is set aside and all the issues raised in the impugned appeal are restored back to the file of the CIT(A) for fresh adjudication in accordance with law after giving reasonable opportunity of hearing to the assessee. 7. In the result, appeal of the assessee is allowed for statistical purposes. Order was pronounced in the open Court on 20th June, 2024.