M/S SWAPNA ENTERPRISES,KANHANGAD vs. JCIT CIRCLE 1, KANNUR

At the very outset, it was submitted by Shri Jacob, the learned counsel for the assessee, that the assessee, a wholesale dealer in drugs and pharmaceuticals, aggrieved by the impugned assessment, making five different additions/ disallowances – aggregating to over Rs. 5 lacs, to it’s returned income, filed it’s appeal with the first appellate authority in time, raising as many as six grounds. Vide the impugned order, the ld. CIT(A) has, however, dismissed the appeal in limine for want of prosecution by the assessee-appellant. No notice of hearing, he would (AY : 2012-13) Swapana Enterprises v. Jt. CIT continue, either through email or by post, was received by the assessee, and which explains the non-appearances before him, leading to the inference of the assessee being not interested in prosecuting it’s appeal, and dismissing it in limine. The same, in any case, ought to have been per a speaking order, which is not the case; the ld. CIT(A) dismissing the appeal solely by drawing adverse an inference, stating that no material had been brought on record by the assessee. The impugned order may, therefore, he would pray, be set aside for deciding the assessee’s appeal afresh on merits, and after allowing the assessee due opportunity of hearing. Smt. Devi, the ld. Sr. DR, would submit that nothing has been brought on record by the assessee to exhibit non-receipt of notices, even as, on being queried, would state of having no objection to the matter being remanded back for an adjudication on merits.

We have heard the parties, and perused the material on record. 3.1 The assessee’s statement, through it’s counsel, of non-receipt of any notice, either per email or by post, had to be, for us to allow credence thereto, supported by an affidavit. This is particularly so as, firstly, there is nothing to show that the assessee had provided any email id for communication and, two, the statement, even as observed by the Bench during hearing, is incorrect, at least to the extent of the first notice dated 28/12/2020, inasmuch as it was in fact responded to by the assessee, seeking adjournment. The same would rather lead to the presumption as to the subsequent notices having also been delivered; the assessee having provided it’s postal address per Form 35, even as the Appeal stood subsequently migrated to under the Faceless Scheme. 3.2 Be that as it may, we find the impugned order as not maintainable inasmuch as it is not a speaking order, satisfying the mandate of s. 250(6) of the Act; nay, any judicial order. As rightly pointed out by Shri Jacob, unless per a speaking order, stating the issue/s arising for determination, with arguments for and against, as well as the reason/s informing the decision, it would not be possible for a higher forum