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Facts
The assessee's appeal was dismissed by the Ld. CIT(A) for non-prosecution as no one appeared on behalf of the assessee despite notification. The Ld. DR agreed that the appeal was decided ex-parte without considering the assessee's submission.
Held
The Appellate Tribunal held that the Ld. CIT(A) is required to decide the appeal on merit even in case of non-representation. Since the Ld. CIT(A) did not decide the issue on merit, the matter was restored back to the file of the Ld. CIT(A) for a reasoned order.
Key Issues
Whether the Ld. CIT(A) erred in dismissing the appeal for non-prosecution without deciding the issue on merit. Whether the non-issue of notice u/s 143(2) renders the order u/s 143(3) r.w.s. 147 invalid.
Sections Cited
143(2), 143(3), 147, 148, 220(6), 246A, 250(6)
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Income Tax Appellate Tribunal, MUMBAI BENCH “G” MUMBAI
Before: SHRI OM PRAKASH KANT & MS. KAVITHA RAJAGOPAL
PER OM PRAKASH KANT, AM
This appeal by the assessee is directed against order dated 29.08.2023 passed by the Ld. Commissioner of Income-tax (Appeals) – National Faceless Appeal Centre, Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2011-12, raising following grounds:
Whether the non-issue of notice u/s 143(2) of the Act, will render the order u/s 143(3) r.w.s. 147 dated 08/12/2018 invalid / void ab initio. On the facts and in the circumstances of the case and in
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law, the order u/s 143(3) r.w. 147 dated 08/12/2018 is to be law, the order u/s 143(3) r.w. 147 dated 08/12/2018 is to be law, the order u/s 143(3) r.w. 147 dated 08/12/2018 is to be held to be invalid / void ab initio as the notice u/s 143(2) has not held to be invalid / void ab initio as the notice u/s 143(2) has not held to be invalid / void ab initio as the notice u/s 143(2) has not been issued by the Ld. AO during the course of re been issued by the Ld. AO during the course of re-assessment assessment proceedings. Section 143(2)/ 143(3) r.w.s. 147 proceedings. Section 143(2)/ 143(3) r.w.s. 147 Whether the Ld. AO is justified in passing a back dated order Whether the Ld. AO is justified in passing a back dated order Whether the Ld. AO is justified in passing a back dated order without taking cognizance of the submission of the assessee On without taking cognizance of the submission of the assessee On without taking cognizance of the submission of the assessee On the facts and in the circumstances of the ca se and in law, the Ld. the facts and in the circumstances of the ca se and in law, the Ld. the facts and in the circumstances of the ca se and in law, the Ld. AO is not justified in passing a back dated order on 08.12.2018, justified in passing a back dated order on 08.12.2018, justified in passing a back dated order on 08.12.2018, when the submission to show cause notice was e when the submission to show cause notice was e-file d on file d on 21.12.2018. Section 148 21.12.2018. Section 148 Whether the Ld. AO was bound to pass a speaking order in Whether the Ld. AO was bound to pass a speaking order in Whether the Ld. AO was bound to pass a speaking order in respect of objections raised against reasons recorded for re respect of objections raised against reasons recorded for re respect of objections raised against reasons recorded for re- opening of assessment On the facts and in the circumstances of ening of assessment On the facts and in the circumstances of ening of assessment On the facts and in the circumstances of the case and in law, the Ld. AO has erred in completing the the case and in law, the Ld. AO has erred in completing the the case and in law, the Ld. AO has erred in completing the proceedings us 148 of the Act without passing a speaking order in proceedings us 148 of the Act without passing a speaking order in proceedings us 148 of the Act without passing a speaking order in respect of objections raised on reasons recorded for reopening of respect of objections raised on reasons recorded for reopening of respect of objections raised on reasons recorded for reopening of assessment proceedings. Section 220(6) Stay of demand on the essment proceedings. Section 220(6) Stay of demand on the essment proceedings. Section 220(6) Stay of demand on the facts and in the circumstances of the ca se and in law, as the facts and in the circumstances of the ca se and in law, as the facts and in the circumstances of the ca se and in law, as the entire demand of Rs. 45,5 0,720/ entire demand of Rs. 45,5 0,720/-is disputed before the Ld. is disputed before the Ld. CIT(A), the same may be stayed until the disposal of the Appeal. CIT(A), the same may be stayed until the disposal of the Appeal. CIT(A), the same may be stayed until the disposal of the Appeal. Section 246A Deletion, alteration, modification etc. of the relevant 6A Deletion, alteration, modification etc. of the relevant 6A Deletion, alteration, modification etc. of the relevant rounds of appeals The appellant craves for addition, deletion, rounds of appeals The appellant craves for addition, deletion, rounds of appeals The appellant craves for addition, deletion, alteration, and modification etc. of the grounds of appeal. alteration, and modification etc. of the grounds of appeal. 2. Despite notifying, neither anyone Despite notifying, neither anyone attended on behalf of the attended on behalf of the assessee nor any application for adjournment was filed, r any application for adjournment was filed, therefore, r any application for adjournment was filed, the appeal was heard ex heard ex-parte qua the assessee after hearing the parte qua the assessee after hearing the arguments of the Ld. Departmental Representative (DR). arguments of the Ld. Departmental Representative (DR). arguments of the Ld. Departmental Representative (DR).
Before us, the Ld. DR Before us, the Ld. DR though relied on the order of ld CIT(A) though relied on the order of ld CIT(A) but agreed that the appeal has been decided ex-parte parte by the Ld. CIT(A) without taking into consideration submission of the assessee CIT(A) without taking into consideration submission of the assessee CIT(A) without taking into consideration submission of the assessee and therefore, the appeal need to be restored back to the file of the and therefore, the appeal need to be restored back to the file of the and therefore, the appeal need to be restored back to the file of the Ld. CIT(A).
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We have heard submission of the Ld. DR. We find that We have heard submission of the Ld. DR. We find that We have heard submission of the Ld. DR. We find that the Ld. CIT(A) has dismissed the appeal for non CIT(A) has dismissed the appeal for non-prosecution. The relevant prosecution. The relevant finding of the Ld. CIT(A) is reproduced as under: finding of the Ld. CIT(A) is reproduced as under:
“6. Discussion and appellate decision: 6. Discussion and appellate decision:- It is evident from the above chronology of events that even though It is evident from the above chronology of events that even though It is evident from the above chronology of events that even though various various opportunities opportunities we were re provided provided to to the the appellant appellant who who deliberately and willfully avoided the compliance of statutory notices deliberately and willfully avoided the compliance of statutory notices deliberately and willfully avoided the compliance of statutory notices which simply prove that it is not interested in prosecution of the which simply prove that it is not interested in prosecution of the which simply prove that it is not interested in prosecution of the matter. It is held in the case of CIT Vs. B.N. Bhattachargee & Ors. matter. It is held in the case of CIT Vs. B.N. Bhattachargee & Ors. matter. It is held in the case of CIT Vs. B.N. Bhattachargee & Ors. (118 ITR 461) by (118 ITR 461) by the Hon'ble Supreme Court that the appeal does not the Hon'ble Supreme Court that the appeal does not mean merely filing of appeal but effectively pursing it. The sum and mean merely filing of appeal but effectively pursing it. The sum and mean merely filing of appeal but effectively pursing it. The sum and substance of ratio of this case is that the assessee cannot ask for substance of ratio of this case is that the assessee cannot ask for substance of ratio of this case is that the assessee cannot ask for relief merely by filing an appeal. In the case of Estate of Late relief merely by filing an appeal. In the case of Estate of Late relief merely by filing an appeal. In the case of Estate of Late Tukojirao Holkar Vs. CWT (223 ITR 480) (MP) while dismissing the ojirao Holkar Vs. CWT (223 ITR 480) (MP) while dismissing the ojirao Holkar Vs. CWT (223 ITR 480) (MP) while dismissing the reference at the instance of the assessee in default made following reference at the instance of the assessee in default made following reference at the instance of the assessee in default made following observation in their order: observation in their order:- "If the party at whose instance the reference is made, fails to "If the party at whose instance the reference is made, fails to "If the party at whose instance the reference is made, fails to appear at the hearing or fails in appear at the hearing or fails in taking steps for preparation taking steps for preparation of the paper books so as to enable hearing of the reference, of the paper books so as to enable hearing of the reference, of the paper books so as to enable hearing of the reference, the court is not bound to answer the reference." the court is not bound to answer the reference." The Hon'ble Bombay High Court in the case of M/s. Chemipol V/s. The Hon'ble Bombay High Court in the case of M/s. Chemipol V/s. The Hon'ble Bombay High Court in the case of M/s. Chemipol V/s. Union of India in Excise Appeal No.62 of 2009 has he Union of India in Excise Appeal No.62 of 2009 has held that in the ld that in the cases where the assessee does not want to pursue the appeal, cases where the assessee does not want to pursue the appeal, cases where the assessee does not want to pursue the appeal, appellate authorities have inherent power to dismiss the appeal for appellate authorities have inherent power to dismiss the appeal for appellate authorities have inherent power to dismiss the appeal for non-prosecution. Likewise, in the case of CIT Vs. Multiplan India (P) prosecution. Likewise, in the case of CIT Vs. Multiplan India (P) prosecution. Likewise, in the case of CIT Vs. Multiplan India (P) Ltd. (38 ITD 320) (Del) the Ltd. (38 ITD 320) (Del) the appeal filed by the appellant was y the appellant was dismissed for non dismissed for non-attendance.” 4.1 In our opinion, In our opinion, as per the provisions of section 250(6) of the as per the provisions of section 250(6) of the Income-tax Act, 1961 (in short ‘the Act’), tax Act, 1961 (in short ‘the Act’), the Ld. CIT(A) is required the Ld. CIT(A) is required to decide the appeal on merit even in case of non to decide the appeal on merit even in case of non-representation by representation by the assessee. Since, the Ld. CIT(A) has not decided the issue in the assessee. Since, the Ld. CIT(A) has not decided the issue in the assessee. Since, the Ld. CIT(A) has not decided the issue in dispute on merit therefore, we restore the matter back to the file of merit therefore, we restore the matter back to the file of merit therefore, we restore the matter back to the file of the Ld. CIT(A) with the direction to pass a reasoned order on merit the Ld. CIT(A) with the direction to pass a reasoned order on merit the Ld. CIT(A) with the direction to pass a reasoned order on merit after providing adequate opportunity of being heard to the assessee. after providing adequate opportunity of being heard t after providing adequate opportunity of being heard t
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The grounds raised by the assessee are accordingly allowed for The grounds raised by the assessee are accordingly allowed for The grounds raised by the assessee are accordingly allowed for statistical purposes.
In the result, the appeal of the assessee is allowed for In the result, the appeal of the assessee is allowed for In the result, the appeal of the assessee is allowed for statistical purposes. statistical purposes.
Order pronounced in Order pronounced in the open Court on 04/04 /04/2024. Sd/ Sd/- Sd/- (KAVITHA RAJAGOPAL RAJAGOPAL) (OM PRAKASH KANT OM PRAKASH KANT) JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER Mumbai; Dated: 04/04/2024 Rahul Sharma, Sr. P.S. Copy of the Order forwarded to Copy of the Order forwarded to : 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. BY ORDER, BY ORDER, //True Copy// (Assistant Registrar) (Assistant Registrar) ITAT, Mumbai ITAT, Mumbai