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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
This appeal by assessee is directed against the order dated 29.05.2023 of the Commissioner of Income Tax (Appeal), National Faceless Appeal Centre, Delhi for A.Y.2016-17. The assesse has raised following grounds of appeal:
“1The Ld. AO was not justified in passing the order, which is bad-in-law, void ab initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled. 2. The Ld. CIT(A) was not justified in confirming the order, which is bad-in-law, void ab initio, barred by limitation, illegal, ITANo.366/Ind/2023 Vikas Tiwari contrary to the facts and circumstances of the case, liable to be annulled.
The Id. CIT(A) was not justified in giving a fair and meaningful opportunity and dismissing the appeal ex-parte for non-prosecution, and not on merits. 4.The Id. CIT(A) was not justified in confirming the addition of Rs. 1,50,65,530/- against increase in Proprietors capital. 5.The Id. CIT(A) was not justified in confirming the application of section 69A Considering as unexplained money.
The appellant carves leave to add, amend or modify any of the grounds of appeal
.”
2. At the time of hearing Ld. AR of the assessee has submitted that the appeal of the assessee has been dismissed by the CIT(A) for non-prosecution while passing ex-parte impugned order. Therefore, he has pleaded that the impugned order of the CIT(A) may be set aside and the matter be remanded to the record of the CIT(A) for fresh adjudication of the appeal on merits.
3. On the other hand, Ld. DR has raised no serious objection if the matter is remanded to the record of the CIT(A) for fresh adjudication.
4. Having considered the rival submissions as well as careful perusal of the impugned order, we note that the CIT(A) has not decided the appeal of the assessee on merits but the same has been dismissed for non-prosecution. The concluding part of the impugned order in para 4.2 is as under:
ITANo.366/Ind/2023 Vikas Tiwari “4.2 Hon'ble Supreme Courtin the case of CIT vs. Β.Ν. Bhattacharjee and Another, 118 ITR 461(SC) observed that preferring an appeal means more than formally filing it but effectively prosecuting it. Hon'ble M.P. High Court in the case of Estate of Late Tukojirao Holkar vs. CWT, (1997) (223 ITR 480) (M.P.) dismissed the reference in default and for not taking necessary steps. Similar view has been taken by I.T.A.T. Delhi Bench in the case of CIT Vs. Multiplan India (P) Ltd. (1991)(38 ITD 320). Considering the above, it appears that the appellant is not interested in prosecuting his appeal. Therefore, the appeal filed by the appellant is dismissed for non-prosecution.”
Though the CIT(A) has referred to the various notices issued to the assessee and sent to the registered e-mail -ID however, it is not clear from the impugned order as to whether the notices were sent to the E-mail ID given in form No.35 or not. In any case when the appeal of the assessee was dismissed for non-prosecution and has not been decided on merits then the impugned order of the CIT(A) is not in accordance with the provisions of section 250(6) of the Act.
Accordingly in the facts and circumstances of the case and interest of justice the impugned order is set aside and matter is remanded to the record of the CIT(A) for fresh adjudication on merits after giving one more opportunity of hearing to the assessee. Page 3 of 4
ITANo.366/Ind/2023 Vikas Tiwari 4. In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on conclusion of hearing on 23.04.2024.