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Income Tax Appellate Tribunal, MUMBAI BENCHES “SMC”, MUMBAI
Before: Shri Shamim Yahya
O R D E R This appeal by the assessee is directed against order of learned CIT(A) dated 23.11.2016 and pertains to assessment year 2011-12.
At the outset, in this case, the assessee has raised the ground that the learned CIT(A) has erred in dismissing the appeal for non-prosecution and not passing an order on merits of the case.
In this case it is noted that the learned CIT(A) has not passed an order on merits of the case but has dismissed the appeal for non-prosecution. In this regard it is noted that the Hon’ble Bombay High Court in the case of CIT v. T.A.Luthara HUF 240 Taxman 133 has held that learned CIT(A) has no power to dismiss appeal for non-prosecution. It is incumbent upon him to pass an order on merits of the case. Similarly the Hon’ble Apex Court in the case of CIT v. S.Chenniappa Mudaliar [(1969) 74 ITR 41 (SC)] has held that . Shri Devang C.Goradia the Appellate Tribunal cannot dismiss for default but has to give speaking order on merits.
Accordingly, in the background of the aforesaid precedents, the issue raised in this appeal are remitted to the file of learned CIT(A). The learned CIT(A) is directed to pass a speaking order on merits of the case after giving the assessee adequate opportunity of being heard.
In the result, this appeal filed by the assessee stands allowed for statistical purposes.