M/S. CONCRETE DEVELOPERS, NAGPUR vs. ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1(3), NAGPUR

Since the facts and solitary issue involved in these six appeals are identical, on the request of rival parties, and for the sake of brevity these appeals are heard together for a common and consolidated order.

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Briefly stated common facts of this bunch of cases are; 3.1 The assessee a partnership firm whereupon a search action u/s 132 of the Act was carried out, wherein certain incrementing documents were seized pursuant to which proceeding u/s 153A of the Act were initiated. Considering the returns of income filed by the assessee, the Ld. respondent for AY 2010-11 to 2015-16 reassessed the total income u/s 143(3) r.w.s. 153A of the Act by making additions towards unexplained income/expenditure alongwith income disclosed during the course of search. While framing assessment u/s 143(3) of the Act similar additions were also made in AY 2016-17, whereas a solitary disallowance u/s 40a(ia) of the Act was made in AY 2017-18.

We have heard rival contentions; and subject to the provisions of rule 18 of ITAT-Rules 1963 perused the material placed on records. At the outset in this bunch of appeals we note that, in view of the restriction placed by clause (a) of section 251(1) of the Act the Ld. CIT(A) proceeded to adjudicate the appeals ex-parte owning to non-prosecution by the assessee and without touching the merits came to dismiss the assessee’s appeals in limine by placing reliance on ‘M/s Multiplan India Pvt. Ltd.’ & Gold Leaf Capital Corporation Ltd (supra) which is no longer a good law at present.

Dispensing reproduction of provision in verbatim, we voice here that, a plain reading of section 250 of the Act reveals that, even in case of ex-parte proceedings it is incumbent upon the Ld. CIT(A); (i) to make necessary enquiries (ii) to deal with each issue under challenge on merits and (iii) to decide the grievance under appeal by a well speaking order by stating therein (a) point of his determination, (b) decision arrived thereon and (c) clear reasons therefore. A conjoint reading of s/s (4) r.w.s/s (6) of section 250 of the Act further unveils that the Ld. CIT(A) while exercising his jurisdiction u/s 251(1)(a) of the Act is in no case empowered to dismiss an appeal without dealing each issue under challenge on merits.

The Hon’ble Jurisdictional Bombay High Court in CIT Vs Premkumar Arjunda’ [2016, 240 Taxman 133 (Bom)] has categorically held that, the Ld. CIT(A) is not empowered to dismiss an appeal in limine for non-prosecution without dealing merits thereof. We find the similar proposition in catena of ITAT-Nagpur Page 3 of 4

In view of the above discussion and respectfully following former binding judicial precedents, without commenting on merits of the case, we set- aside the impugned ex-parte orders and remit these matters back to the file of Ld. CIT(A) for de-nova adjudication in accordance with law with a direction to accord not more than two effective opportunities in each case and pass a speaking order in terms of section 250(6) of the Act.

In result, these six appeals are allowed for statistical purposes in above terms. In terms of rule 34 of ITAT Rules, this order is pronounced in the open court on this Friday, 12th day of April, 2024.