SHWETA KISHORE BHATIA,MUMBAI vs. DCIT WD 19(3), MUMBAI

Inspite of issuance of notice, none appeared on behalf of the assessee at the time of hearing, therefore, we proceed to decide the appeal ex parte qua the assessee after hearing the Ld. DR on merit in terms of Rule 24 of the Appellate Tribunal Rules, 1963.

In this appeal, the first and the foremost plea of the assessee is that the CIT(A) erred in disposing the appeal of the assessee ex parte without deciding on merits of the grounds raised before him.

In brief, the relevant facts are that assessee is an individual whose return of income for Assessment Year 2010-11 was subject to scrutiny assessment whereby the total income was assessed at the returned income of Rs.2,11,20,740/- but the income arising from sale of shares was computed under the head ‘Profits & Gains of Business or Profession” instead of the head “Capital Gains” as declared by the assessee. This was challenged in appeal before the CIT(A), who has dismissed the appeal without going into the merits of the case as according to him assessee was not interested in pursuing the appeal because nobody appeared on behalf of the assessee inspite of issuance of notice of hearing.

At the time of hearing, it was pointed out to the Ld. DR that the CIT(A) has dismissed the appeal without deciding on merits the grounds raised before him, which is unsustainable. It was therefore pointed out that the matter deserves to be revisited by the CIT(A) as per law.

Having considered the impugned order and the submissions of the Ld. DR, we find that in the present case the appeal of the assessee has been dismissed by the Commissioner (Appeals) without going into the merits of the issues raised before him. Sec. 250(6) of the Act prescribes that the order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reasons for such a decision. Ostensibly, the CIT(A) is obligated to dispose of the appeal in the manner prescribed in Sec. 250(6) of the Act, which requires that the issues raised before him by way of the Grounds of appeal are addressed, decision rendered thereon by stating the reasons for such a decision. The said approach is conspicuous by its absence in the impugned order of the CIT(A), wherein the appeal has been dismissed in limine without adverting to the merits of the Grounds of appeal raised before him. Therefore, on this count itself, the impugned order of CIT(A) is unsustainable. Be that as it may, we deem it fit and proper to set-aside the impugned order of CIT(A) and remand the appeal back to his file for adjudication afresh as per law after allowing the assessee a reasonable opportunity of being heard.

In the result, appeal of the assessee is allowed, as above.