ASHOK KUMAR D. JAIN,MUMBAI vs. INCOME TAX OFFICER-9(2)(1), MUMBAI

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ITA 5965/MUM/2017Status: DisposedITAT Mumbai05 February 2018AY 2006-073 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal held that the CIT(A) should have decided the appeal on merits rather than dismissing it for non-prosecution. The matter was remitted back to the CIT(A) for fresh consideration.

What were the facts?

The assessee's appeal was dismissed by the CIT(A) for non-prosecution. The assessee contended that they were prevented by reasonable cause from attending the appellate proceedings.

What were the issues?

Whether the CIT(A) erred in dismissing the appeal for non-prosecution without considering the merits of the case.

Which sections of the Income-tax Act were involved?

Section 143(3),Section 147,Section 14A

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Income Tax Appellate Tribunal, “SMC” BENCH, MUMBAI

Before: SHRI SHAMIM YAHYA

For Appellant: Shri Pratik Jain, Ms. N. Hemalatha
For Respondent: Ms. N. Hemalatha

O R D E R Per Shamim Yahya, A. M.: This appeal by the assessee is directed against the order by the Commissioner of Income Tax (Appeals) dated 20.06.2017 and pertains to the assessment year 2006- 07. 2. The grounds of appeal

read as under:

1.

1. On the facts and circumstances of the case and in law, appellant was prevented by reasonable cause in not attending the appellate proceedings before the Ld. CIT(A)-20, Mumbai, and thus the ex-parte order passed by the Ld. CIT(A) deserves to be set aside.

(A.y. 2006-07) Shri Ashok Kumar D. Jain vs. ITO 2. On the facts and circumstances of the case and in law; Ld.CIT(A)-20, Mumbai erred in dismissing appellant's case in limine & without considering the merit of the case.

3. On the facts and circumstances of the case and in law the Ld.CIT(A)-20, Mumbai grossly erred in confirming order passed by the Assessing Officer u/s 143(3) r.w.sl47.

4. That the Ld. CIT(A)-20 Mumbai erred in confirming the disallowance under section 14A r.w.r 8D amounting to Rs. 17,108/- made by the Assessing Officer.

5. That the Ld. CIT(A)-20, Mumbai erred in confirming the action of Assessing Officer in treating the Short Term Capital Gains of Rs. 13,03,198/- as income from other sources.

6. That the Ld. CIT(A)-20, Mumbai erred in confirming disallowance of Rs. 26,064 made by Ld. AO on account of expenditure for earning short term capital gain.

3.

At the outset, I note that the ld. Commissioner of Income Tax (Appeals) has dismissed the appeal for non-prosecution.

4.

Upon hearing both the counsel and perused the records, I find that it is incumbent upon the ld. Commissioner of Income Tax (Appeals) to pass an order on the merits of the case and not dismissed the appeal for non-prosecution.

5.

For this proposition, I place reliance upon following case laws:

1.

CIT vs Premkumar Arjundas Luthra (HUF) (2017) 154 DTK (Bom)302 2. CIT vs S Chenniappa Mudaliar(1969)74 ITR 1(SC)

6.

Accordingly, in the interest of justice I remit the issue raised in the appeal to the file of the ld. Commissioner of Income Tax (Appeals). The ld. Commissioner of Income Tax (Appeals) is directed to consider the issue afresh and pass an order on the merits of the case after giving the assessee proper opportunity of being heard.

7.

Learned counsel of the assessee has also given undertaking that he shall appear before the ld. Commissioner of Income Tax (Appeals) suo motto within two months of this order to canvas the appeal.

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