SURESH BABU SYAMUNA,CHENNAI vs. ACIT, NON CORPORATE WARD-7(1), CHENNAI

आदेश / O R D E R PER MANJUNATHA.G, AM: This appeal filed by the assessee is directed against the order of the

Commissioner of Income Tax (Appeals), Income Tax Department,

National Faceless Appeal Centre, Delhi, dated 27.10.2023, and pertains to

assessment year 2017-18.

individual and filed her return of income for AY 2017-18 on 09.05.2017

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declaring a total income of Rs.23,58,080/-. The case was selected for

scrutiny and during the course of assessment proceedings, the AO noticed

that during the year under consideration, the assessee had sold a

property along with her husband for a sum of Rs.7 Crs. and computed

Long Term Capital Gains and claimed deduction u/s.54 of the Act. The AO

after considering relevant details observed that the property sold by the

assessee is a commercial property and thus, re-investment of capital

gains for purchase of another housing property, is not eligible for

deduction u/s.54 of the Act, and thus, rejected exemption claimed by the

assessee u/s.54 of the Act, and computed Long Term Capital Gains of

Rs.1,52,68,833/-. Since, the assessee has already offered Long Term

Capital Gains of Rs.23,58,080/-, the difference amount of

Rs.1,29,10,753/- has been added to total income.

an appeal before the Ld.CIT(A). Before the Ld.CIT(A), the assessee

neither appeared nor filed any details which is evident from Para No.4 of

the order of the Ld.CIT(A), where the Ld.CIT(A) had given various dates

of hearing to the assessee to file details, but no response from the

assessee. Therefore, the Ld.CIT(A) disposed off appeal filed by the

assessee ex parte on the basis of materials available on record and

sustained the additions made by the AO towards computation of Long

Term Capital Gains from sale of property. Aggrieved by the order of the

Ld.CIT(A), the assessee is in appeal before us.

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submitted that the First Appellate Authority has passed ex parte order

for non-appearance of the assessee and decided the issue without

considering the facts on merits. Therefore, he submitted that the matter

may be set aside to the file of the Ld.CIT(A) to give one more opportunity

of hearing to the assessee.

Ld.CIT(A), submitted when the assessee is not responding to notices, the

First Appellate Authority has left with no choice but to dispose off appeal

filed by the assessee on the basis of materials available on record, and

thus, there is no need to give one more opportunity of hearing to the

assessee, and thus, the appeal filed by the assessee may be dismissed.

record and gone through orders of the authorities below. There is no

dispute with regard to fact that the assessee is not appeared before the

Ld.CIT(A) when the appeal was posted for hearing which is evident from

Para No.4 of the order of the Ld.CIT(A), where, the First Appellate

Authority had given number of opportunities, but no response from the

assessee. Therefore, we do not find fault with the ex parte order passed

by the First Appellate Authority when there is no cooperation from the

assessee. But, fact remains that the First Appellate Authority has disposed

off appeal filed by the assessee on technical grounds without considering

the issues on merits. It is a well settled principle of law by the decision of

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various courts that even in a case non-appearance of the assessee, the

appeal disposed off, but such appeal should be disposed off on merits on

the basis of materials available on record. In the present case, the

Ld.CIT(A) dismissed the appeal filed by the assessee for non-prosecution

without discussing the issues on merits. Therefore, we are of the

considered view that the Ld.CIT(A) is erred in not deciding the issues

raised by the assessee in their appeal on merits. Thus, we set aside the

order of the Ld.CIT(A) and restored the issues back to the file of the

Ld.CIT(A) to give one more opportunity of hearing to the assessee to

explain its case. Further, the assessee is not serious in prosecuting their

case before the authorities which cannot be appreciated and also the

assessee cannot go scot free. Therefore, appeal is set aside to the file of

the Ld.CIT(A) subject to payment of cost of Rs.5,000/- to State Legal Aid

Authority, the Hon’ble Madras High Court and produce necessary proof of

payment of cost to the office of the Ld.CIT(A).

purposes.

Order pronounced on the 27th day of March, 2024, in Chennai.

Sd/- Sd/- (मंजूनाथा.जी) (वी. दुगा� राव) (MANJUNATHA.G) (V. DURGA RAO) लेखा सद�य/ACCOUNTANT MEMBER �याियक सद�य/JUDICIAL MEMBER चे�ई/Chennai, �दनांक/Dated: 27th March, 2024. TLN

ITA No.1437/Chny/2023 :: 5 :: आदेश क� �ितिलिप अ�ेिषत/Copy to: 1. अपीलाथ�/Appellant 2. ��थ�/Respondent 3. आयकरआयु /CIT 4.िवभागीय�ितिनिध/DR 5. गाड�फाईल/GF