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Income Tax Appellate Tribunal, “D”, BENCH KOLKATA
Before: SHRI A.T.VARKEY, JM & DR. A.L.SAINI, AM
O R D E R
Per Dr. Arjun Lal Saini, AM:
The captioned appeal filed by the assessee, pertaining to the Assessment Year 2011-2012, is directed against the order passed by ld. Commissioner of Income Tax (Appeals)-7, Kolkata, in Appeal No.541/CIT(A)-7/Kol/Wd-26(4)/14-15, dated 19.08.2016, which in turn arises out of an order passed by the Assessing Officer (AO) Under Section 144 of the Income Tax Act 1961, (in short the ‘Act’), dated 14.03.2014.
Brief facts of the case qua the assessee are that Assessee filed its return of income of Rs.4,90,030/-, on dated 10/03/2012. The assessee had derived his income from selling of fish. The assessee’s case was selected for scrutiny u/s.143(3) of the Act and the AO has completed the assessment by making the addition @5% estimated the net profit on turnover at Rs.15,87,932/-. 3. Aggrieved from the order of the AO, assessee filed an appeal before the ld CIT(A), who has confirmed the addition made by the AO by passing an ex-parte order observing the followings :-
3.3 The Hon'ble High Court of M.P. in the case of Tukojirao Holkar Vs. CWT(223 ITR 480) had held that "if the party, at whose instance the reference is made at, fails to appear hearing .... ,. the court is not bound to answer the reference." Similarly their lordship, in case of CIT vs. B N Bhattacharya( 118 ITR 461) ( relevant pages 477 & 478) had held that “appeal not mean merely filing of appeal but effectively pusuing it."Recently Hon'ble ITAT Delhi (ITR No. 2006/Del/2011 dated 19.11. 2011) in the case of Whirlpool of India Ltd. V DCIT had dismissed appeal for not attending hearing inferring that the assessee is not interested in prosecuting of appeal. Thereafter in another decision in the case of Chadha Finlease Ltd. vs. ACIT (ITA NO. 3013/Del/2011 date of order 20/12/2011) the Hon'ble ITAT had dismissed the appeal for non-attending hearing inferring that the assessee is not interested in pursuing the appeal. In this regard I am also supported by the decision in the case of CIT vs. Multiplan India Pvt. Ltd. (38 ITD) 320(Del). Apart from the dismissal for want of persuasion of appeal, the same is liable to be rejected on merit also which is discussed hereinafter.
3.4 I have perused the grounds of appeal, statement of facts and the assessment order. The assessee has not produced any material to controvert the finding of A O. Further, from the above conduct of the assessee, it is clear that the assessee is not interested in prosecuting its appeal. In the event, I have no reason to interfere with the findings of the AO. In such circumstances, I dismiss the claim of the appellant.
In the result, the appeal is dismissed.
4. Not being satisfied with the order of ld. CIT(A), the assessee is in further appeal before us and has taken the following grounds of appeal :- 1(a). For that on the facts and in the circumstances of the case, CIT(A) erred in passing an ex-parte order without deciding the issue on merit.
(b) For that the assessee was prevented by a reasonable cause. As such assessee cannot be penalized for no fault on his part. 2. For that on the facts and in the circumstances of the case, CIT(A) ought to have made a reasonable estimate of assessee’s income inasmuch as the AO passed the assessment order making arbitrary estimation. 3. That the appellant craves leave to add, alter or amend any around before or at the time of hearing.
Although in this appeal, the assessee has raised five grounds of appeal but at the time of hearing the main grievance of the assessee has been confined to ground No.1(a) only and other grounds were not pressed.
Ground No.1(a) relates to an ex-parte order, passed by ld. CIT(A) without deciding the issue on merits and without giving an opportunity to the assessee of being heard.