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Income Tax Appellate Tribunal, ‘ B’ BENCH (SMC
Before: SHRI ABRAHAM P. GEORGE
आदेश / O R D E R
In this appeal filed by the assessee, its grievance is that the additions made by the ld. Assessing Officer and confirmed by the ld. Commissioner of Income Tax (Appeals) were based on presumptions and on a dead person.
Submissions of the assessee before us can be summarized 2. as under:-
‘’The assessee passed away on 19.11.1991. Thereafter, proceedings were initiated for re-assesment and order passed on 31.1.2003 on only one of the legal heir Smt. Bidam Bai (wife)
ITA No.2905/Mds/2016. :- 2 -:
In the appeal filed by her an additional ground was raised that notice u/s.148 having not been served on all the legal heirs, the re-assessment is nullity. The Assessing Officer submitted his report dated 31.10.2000 on the said additional ground. The AO submitted remand reports dated 14.12.2004, 14.09.2005 and 20.11.2016 in response to the written submissions filed by the Assessee In the meanwhile, one other legal heir and son Misrimal Jain filed an appeal before the CIT (Appeals) which was dismissed by him as infructuous vide his order dated 11.01.2005 in ITA No.261/2002-03. While the appeal was pending the Appellant Smt. Bidam Bai passed away on 23.11.2009. The Assessee's representative Sri.Ramesh Kumar, Advocate shifted his office from Govindappa Naicken Street to Vepery. The notices of hearing said to have been issued by the Commissioner of Income Tax (Appeals) could not be responded to in this situation. The statement of the CIT (Appeals) that no written submissions were made before him is contrary to facts. The order of the Commissioner of Income Tax (Appeals) is liable to be quashed’’. Per contra, ld. Departmental Representative fairly admitted 3. that the matter can be sent back to the ld. Commissioner of Income Tax (Appeals) for considering the submissions of the assessee and giving an opportunity to represent its case.
I find from the order of the ld. Commissioner of Income Tax (Appeals) that ld. Commissioner of Income Tax (Appeals) after reproducing the grounds taken by the assessee had dismissed the appeal without going into its merits. Ld. CIT(A) was of the opinion that . :- 3 -: assessee had not entered in appearance and was not serious in presuming the matter. In this respect, Sec. 250(6) of the Income Tax Act, 1961 is reproduced hereunder:-
‘’(6) The order of the Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision’’. It is clear from the above sub-section that ld. Commissioner of Income Tax (Appeals) can decide an appeal only based on the merits of the case and cannot dismiss an appeal for non prosecution. I therefore, set aside the order of the ld. Commissioner of Income Tax (Appeals) and remit the issue back to the file of the Assessing Officer for consideration afresh in accordance with law.
In the result, the appeal of the assessee is allowed for 5. statistical purpose.
Order pronounced on Wednesday, the 25th January, 2017, at Chennai.