THOMAS JOHN GOMES,MUMBAI vs. INCOME TAX DEPARTMENT (NFAC), DELHI

The brief facts as culled out from the proceedings before the lower authorities are that the assesses filed Return of income for the A.Y. 2011- 12 on 26.09.2011 declared total income of Rs 6,20,520/-. The return was processed u/s 143(1) of the Act. Subsequently, the case was selected scrutiny and accordingly statutory notice u/s 143(2) was issued on 1.08.2012 which was duly served on the assesses. Notice u/s 142(1) dated 02.07.2013 was issued were duly served to the assesses. In response to the said notices, no response has filed by the assessee.

The said order was challenged in appeal before the Ld. CIT(A) who has dismissed the appeal vide impugned order. The assessee is in appeal before us and has raised following grounds:

The Ld. AR submitted that the impugned order is ex parte and no effective opportunity has been given to the assessee/appellant to present his case before the Ld. CIT(A) which has resulted into a miscarriage of justice and submitted that the matter may be restored to file of the Ld. CIT(A) and impugned order be set aside. The Ld. DR on the other hand supported the order of the Ld. CIT(A) and submitted that the assessee has failed to present his case before the Ld. CIT(A) and there is no merit in appeal.

We have considered the submissions and examined the record. Section 250 sub section 2(a) of "the Act" provides as under:

It is evident from the provision that the hearing to be given is not a formality but an effective hearing is sine qua non for the purpose of upholding the principal of natural justice. We have examined the impugned order and in para no. 4 and 7 of the Ld. CIT(A) observed as under: - 4. After introduction of Faceless Appeal Scheme with effect from 25-09-2020, fresh notices u/s. 250 of the Act were issued on 28- 12-2020 & 11-01- 2022. However, on the appointed dates, the appellant neither made any written submissions nor filed any application seeking adjournment. After enabling the window for communication with the CIT(A) by the NFAC with effect from 01-11-2022 also, no communication has been received from the appellant. Thereafter, one more opportunity was granted to the appellant by issuing notice u/s. 250 of the Act 17- 01-2023 which the appellant failed to avail. Finally, one more notice u/s. 250 of the Act was issued on 28-04-2023 requiring the appellant to furnish its written submissions on or before 08- 05- 2023. In a letter annexed to the hearing notice dated 28-04- 2023, it was specifically stated that this is the “Last Opportunity” to furnish documents / written submissions in support of grounds of appeal, failing which the appeal will be decided ex-parte on the basis of material on record. This notice was also not complied with by the appellant as he neither made any written submissions nor filed any application seeking adjournment. Considering the above facts, it is clear that in this case sufficient number of opportunities have already been granted to the appellant, which the appellant has failed to avail. It may also be noted that this is an old appeal filed before 01- Thomas John Gomes; A.Y. 2011-12 04-2019 and is to be disposed of on priority basis as per Interim Central Action Plan, 2023-24. Under these facts and circumstances, where the appellant’s consistent noncompliance and indifference to the appellate proceedings is abundantly manifest, I do not have any alternative but to decide the appeal on the basis of facts available in grounds of appeal

It is evident from the para no. 4 and 7 of the impugned order extracted above that the appeal has been adjudicated/ disposed off ex parte.

For the above reasons, the impugned order is not legally sustainable in the eyes of law and accordingly set aside. The matter is restored to the file of the Ld. CIT(A) for deciding afresh after affording reasonable opportunity of hearing to the appellant/assessee. The assessee is directed

In the result, appeal filed by the assessee is allowed for statistical purposes in the above terms.