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Facts
The assessee's appeals were directed against two orders of the Ld. CIT(A) concerning assessment year 2016-17, relating to quantum assessment and penalty proceedings. The Ld. CIT(A) had decided the appeal ex-parte without a decision on merits, citing the appellant's failure to respond to notices.
Held
The Tribunal noted that the Ld. CIT(A) decided the appeal without a finding on merit, as required by Section 250(6) of the Act. The Tribunal found it appropriate to set aside the order of the Ld. CIT(A) and restore the appeal back to him for a fresh decision.
Key Issues
Whether the Ld. CIT(A) was justified in deciding the appeal ex-parte without a finding on merits, and if the matter should be remanded for fresh adjudication.
Sections Cited
250(6)
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Income Tax Appellate Tribunal, MUMBAI BENCH “D” MUMBAI
Before: SHRI OM PRAKASH KANT & MS. KAVITHA RAJAGOPAL
These appeals by the assessee are directed against two separate orders dated 28.06.2024 and 02.07.2024 passed by the Ld. Commissioner of Income-tax (Appeals) – National Faceless Appeal Centre, Delhi [in short ‘the Ld. CIT(A)’] for assessment 2016- 17 in relation to quantum assessment proceedings and penalty proceedings respectively.
Mehboob Amirali Kamdar 2 & 4309/MUM/2024 & 4309/MUM/2024
At the outset, the Ld. counsel for the assessee submitted that At the outset, the Ld. counsel for the assessee submitted that At the outset, the Ld. counsel for the assessee submitted that appeal against quantum proceedings have been decided by the Ld. appeal against quantum proceedings have been decided by the Ld. appeal against quantum proceedings have been decided by the Ld. CIT(A) ex-parte and that too without deciding t parte and that too without deciding the issue on merit he issue on merit and therefore, the matter may be restored back for deciding afresh. and therefore, the matter may be restored back for deciding afresh. and therefore, the matter may be restored back for deciding afresh.
We have heard rival submission of the parties and perused the 3. We have heard rival submission of the parties and perused the We have heard rival submission of the parties and perused the relevant material on record. We find that the Ld. CIT(A) in quantum relevant material on record. We find that the Ld. CIT(A) in quantum relevant material on record. We find that the Ld. CIT(A) in quantum he appeal observing as under: assessment proceedings has decided t assessment proceedings has decided the appeal observing as under:
“3. The case was taken up for hearing and notices u/s 250 “3. The case was taken up for hearing and notices u/s 250 “3. The case was taken up for hearing and notices u/s 250 of the Act, were issued on 16/12/2020 & 19/01/2021 of the Act, were issued on 16/12/2020 & 19/01/2021 of the Act, were issued on 16/12/2020 & 19/01/2021 fixing the case for furnishing written submission In fixing the case for furnishing written submission In fixing the case for furnishing written submission In response to these notices the Appellant has not made any response to these notices the Appellant has not made any response to these notices the Appellant has not made any submission. Again notices were issued on 12/02/2024 & submission. Again notices were issued on 12/02/2024 & submission. Again notices were issued on 12/02/2024 & 19/06/2024. The Appellant has not responded or provided 19/06/2024. The Appellant has not responded or provided 19/06/2024. The Appellant has not responded or provided any alternative address. In such condition I have no option any alternative address. In such condition I have no option any alternative address. In such condition I have no option but to decide the case on merits on the basis,of records but to decide the case on merits on the basis,of records but to decide the case on merits on the basis,of records available with this office. available with this office.
4. It is observed from the records that the appellant was . It is observed from the records that the appellant was . It is observed from the records that the appellant was provided multiple opportunities of being heard by way of provided multiple opportunities of being heard by way of provided multiple opportunities of being heard by way of issue of hearing notices. But appellant has not responded to issue of hearing notices. But appellant has not responded to issue of hearing notices. But appellant has not responded to the said notices. From the non responding conduct of the the said notices. From the non responding conduct of the the said notices. From the non responding conduct of the appellant it may be conc appellant it may be concluded that he is not interested in luded that he is not interested in completing the appeal proceedings. To reach the finality of completing the appeal proceedings. To reach the finality of completing the appeal proceedings. To reach the finality of this appeal the following judgments are refer to : this appeal the following judgments are refer to : 4.1 The law aids those who are vigilant, not those who 4.1 The law aids those who are vigilant, not those who 4.1 The law aids those who are vigilant, not those who sleep upon their rights This principle is embodied in t sleep upon their rights This principle is embodied in t sleep upon their rights This principle is embodied in the well known known known Latin Latin Latin dictum. dictum. dictum. "VIGILANTIBUS "VIGILANTIBUS "VIGILANTIBUS ET ET ET NON NON NON DORMIENTIBUS JURA SUB VENIUNT". The conduct of the DORMIENTIBUS JURA SUB VENIUNT". The conduct of the DORMIENTIBUS JURA SUB VENIUNT". The conduct of the Appellant, evidences that the Appellant fails on this Appellant, evidences that the Appellant fails on this Appellant, evidences that the Appellant fails on this principle of equity. Even the Hon'ble courts, in various principle of equity. Even the Hon'ble courts, in various principle of equity. Even the Hon'ble courts, in various pronouncements, have frowned upon the Appella pronouncements, have frowned upon the Appella pronouncements, have frowned upon the Appellants who file appeals but thereafter do not take any further interest file appeals but thereafter do not take any further interest file appeals but thereafter do not take any further interest in prosecuting those appeals. in prosecuting those appeals. 4.2 The Hon'ble Income Tax Appellate Tribunal 4.2 The Hon'ble Income Tax Appellate Tribunal - Kolkata in Kolkata in the case of Pradeep Kumar Jhawar Kolkata vs. DCIT the case of Pradeep Kumar Jhawar Kolkata vs. DCIT the case of Pradeep Kumar Jhawar Kolkata vs. DCIT - CC -
Mehboob Amirali Kamdar 3 & 4309/MUM/2024 & 4309/MUM/2024
XXI (15 March, 2016) (ITA Nos 450/Kol/201 XXI (15 March, 2016) (ITA Nos 450/Kol/2013 for Asstt. 3 for Asstt. Year 2006-07) dismissed the appeal of the Appellant for 07) dismissed the appeal of the Appellant for 07) dismissed the appeal of the Appellant for non - prosecution. prosecution. 4.3 The Hon'ble Madhya 'Pradesh High Court in the case of 4.3 The Hon'ble Madhya 'Pradesh High Court in the case of 4.3 The Hon'ble Madhya 'Pradesh High Court in the case of Estate of Late Tukojirao Holkar vs. CWT (223 (TR 480) held Estate of Late Tukojirao Holkar vs. CWT (223 (TR 480) held Estate of Late Tukojirao Holkar vs. CWT (223 (TR 480) held as under: “If the party, at whose instance the refe “If the party, at whose instance the reference is made, fails rence is made, fails to appear at the hearing, or fails in taking steps for to appear at the hearing, or fails in taking steps for to appear at the hearing, or fails in taking steps for preparation of the paper hooks so as to enable hearing of preparation of the paper hooks so as to enable hearing of preparation of the paper hooks so as to enable hearing of the reference, the court is not hound to answer the the reference, the court is not hound to answer the the reference, the court is not hound to answer the reference. Similarly, the Hon'ble Punjab & Haryana High Court in the Similarly, the Hon'ble Punjab & Haryana High Court in the Similarly, the Hon'ble Punjab & Haryana High Court in the case of New Diwan Oil Mills vs. CIT 112008) 296 ITR 495) ase of New Diwan Oil Mills vs. CIT 112008) 296 ITR 495) ase of New Diwan Oil Mills vs. CIT 112008) 296 ITR 495) returned the reference unanswered since the assessee returned the reference unanswered since the assessee returned the reference unanswered since the assessee remained absent and there was no assistance from the remained absent and there was no assistance from the remained absent and there was no assistance from the assessee 4.4 Considering the above, it is clear that the Appellant is 4.4 Considering the above, it is clear that the Appellant is 4.4 Considering the above, it is clear that the Appellant is not aggrieved with the i not aggrieved with the impugned order and not keen on mpugned order and not keen on pursuing this appeal. Hence I compel to proceed to decide pursuing this appeal. Hence I compel to proceed to decide pursuing this appeal. Hence I compel to proceed to decide the appeal based on the records available in my office and the appeal based on the records available in my office and the appeal based on the records available in my office and on merit of the case. on merit of the case. Considering the records and merits of the case I have left Considering the records and merits of the case I have left Considering the records and merits of the case I have left with no option but to dismi with no option but to dismiss this appeal. Accordingly, the appeal of the Appellant is dismissed.” Accordingly, the appeal of the Appellant is dismissed.” Accordingly, the appeal of the Appellant is dismissed.” 3.1 Since the Ld. CIT(A) has adjudicated the appeal for the Since the Ld. CIT(A) has adjudicated the appeal for the Since the Ld. CIT(A) has adjudicated the appeal for the assessee in default and without any finding on the merit. Under the assessee in default and without any finding on the merit. Under the assessee in default and without any finding on the merit. Under the provisions of section 250(6) of the Act the Ld. CIT(A) referred to pass provisions of section 250(6) of the Act the Ld. CIT(A) r provisions of section 250(6) of the Act the Ld. CIT(A) r a reasoned and speaking order on the grounds of appeal raised by a reasoned and speaking order on the grounds of appeal raised by a reasoned and speaking order on the grounds of appeal raised by the assessee even in absence of any submission on the part of the the assessee even in absence of any submission on the part of the the assessee even in absence of any submission on the part of the assessee and therefore, we feel in appropriate to set aside the order assessee and therefore, we feel in appropriate to set aside the order assessee and therefore, we feel in appropriate to set aside the order of the Ld. CIT(A) and restore the appea of the Ld. CIT(A) and restore the appeal back to him for deciding l back to him for deciding afresh. As far as appeal against penalty proceedings is concerned afresh. As far as appeal against penalty proceedings is concerned afresh. As far as appeal against penalty proceedings is concerned
Mehboob Amirali Kamdar 4 & 4309/MUM/2024 & 4309/MUM/2024 since the appeal in quantum proceedings quantum proceedings has been sent to the file of has been sent to the file of the AO, the appeal against penalty proceedings is also set aside and the AO, the appeal against penalty proceedings is also set aside and the AO, the appeal against penalty proceedings is also set aside and matter is sent back to th matter is sent back to the AO for deciding afresh.
In the result, both the appeals of the assessee are allowed for In the result, both the appeals of the assessee are allowed for In the result, both the appeals of the assessee are allowed for statistical purposes.
Order pronounced in the open Court on nounced in the open Court on 17/10/2024. /10/2024.