KHODIYAR BUILDERS PRIVATE LIMITED,MUMBAI vs. ITO 4(2)(1), MUMBAI
Facts
The assessee preferred an appeal against an ex-parte order passed by the NFAC. The Assessing Officer made additions to the income due to gain/profit and AIR mismatch. Despite opportunities, the assessee failed to provide submissions or documents.
Held
The Tribunal observed that the impugned order was ex-parte and not on merits. Considering the peculiar facts and the absence of adjudicated issues, the Tribunal set aside the order and remanded the case back to the Commissioner for fresh adjudication on merits.
Key Issues
Whether the ex-parte order passed by the Commissioner without adjudicating on merits should be set aside and remanded.
Sections Cited
143(3), 250
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, MUMBAI BENCH “A”, MUMBAI
Before: SHRI NARENDER KUMAR CHOUDHRY & SHRI GAGAN GOYAL
Per : Narender Kumar Choudhry, Judicial Member:
This appeal has been preferred by the Assessee against the order dated 26.10.2023, impugned herein, passed by the National Faceless Appeal Center (NFAC)/ Ld. Commissioner of Income Tax (Appeals) (in short Ld. Commissioner) under section 250 of the Income Tax Act, 1961 (in short ‘the Act’) for the A.Y. 2015-16.
Though the Assessee has submitted adjournment application, however, we observe that the impugned order is ex-parte and not on merits; hence we are inclined to decide this appeal.
In the instant case, the Assessing Officer (AO) vide order dated 26.12.2017 u/s 143(3) of the Act, made the additions of Rs.49,38,060/- & Rs.2,343/- respectively on account of gain/profit
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worked out and AIR mismatch. The Assessee, being aggrieved, challenged the said additions before the Ld. Commissioner, however, in spite of affording various opportunities by sending notices to the Assessee, the Assessee neither filed any submission/information nor any documents, therefore in the constrained circumstances, the Ld. Commissioner decided the appeal of the Assessee as ex-parte and consequently dismissed the same in limine for non-prosecution but not on merits. Though the Assessee, because of its conduct for non compliance, does not deserve any leniency, however, considering the peculiar facts and circumstances of the case, as in the absence of relevant reply and documents, the issues involved in the first appeal remained to be adjudicated on merits, hence for the just decision of the case and for the ends of substantial justice, we are inclined to set aside the impugned order and remand the instant case. Consequently, the case is remanded to the file of the Ld. Commissioner for decision afresh on merits, suffice to say by affording reasonable opportunity to the Assessee to substantiate its claim.
We also direct the Assessee to cooperate with the appellate proceedings and to file the relevant submissions/documents which would be essential and required by the Ld. Commissioner for proper adjudication of the case. In case of further default the Assessee shall not be entitled for any leniency.
In the result, the appeal filed by the assessee stands allowed for statistical purposes.
Order pronounced in the open court on 31.07.2024.
Sd/- Sd/- (GAGAN GOYAL) (NARENDER KUMAR CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMBER
* Kishore, Sr. P.S.
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Copy to: The Appellant The Respondent The CIT, Concerned, Mumbai The DR Concerned Bench
//True Copy//
By Order
Dy/Asstt. Registrar, ITAT, Mumbai.
