GIRISH RATANLAL MURKYA,JALNA vs. INCOME TAX DEPARTMENT NATIONAL FACELESS ASSESSMENT CENTRE, JALNA
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Income Tax Appellate Tribunal, PUNE BENCHES “A”:: PUNE
Before: SHRI SATBEER SINGH GODARA & DR. DIPAK P. RIPOTE
PER DR. DIPAK P. RIPOTE, AM: This is an appeal filed by Assessee against the order of ld. Commissioner of Income Tax (Appeal) [NFAC] passed under section 250 of the Income tax Act, dated 17.08.2023 for the A.Y. 2013-14. 2. The assessee has raised the following grounds of appeal :
“1. The Ld. CIT(A) (NFAC) erred in passing Appeal order under sec. 250 of the Act, dt. 17-08-2023 which order is perverse not only to the facts of the case and also the provisions of the Act, 1961. Girish Ratanlal Murkya
Submission of ld. Authorized Representative (ld.AR) :
The ld. Authorized Representative (ld.AR) for the Assessee submitted that the ld. CIT(A) had not adjudicated the grounds of the appeal. The ld. AR submitted that the ld. CIT(A) has merely dismissed the appeal of the assessee on account of non-compliance.
The ld. AR invited our attention to Form No. 35 and submitted that the assessee “opted out” of e-service of notices. However, it is claimed by the Revenue that the notices were e-served. No notice was received by the assessee issued by the ld. CIT(A). Therefore, the assessee could not comply. The ld. AR submitted that there was no opportunity granted by the ld. CIT(A) and requested for one more opportunity of being heard to the assessee.
Submission of ld. Departmental Representative (ld. DR) :
The ld. DR for the Revenue relied on the order of Assessing Officer (AO) and ld. CIT(A) [NFAC]. Findings & Analysis :
We have heard both the parties and perused the records. It is observed that the assessee had filed return of income for A.Y. 2013- 14 on 29.09.2013 declaring total income of Rs.2,80,870/-. The AO 2 Girish Ratanlal Murkya
has mentioned in the assessment order that he received information on “Insight Portal” of the Income Tax Department that the assessee has deposited cash of Rs.65,36,125/- in his account maintained with M/s. Shri Renuka Mata Multi State Urban C0-opertaive Credit Society Ltd. Therefore, the AO issued notice u/s. 148 of the Act on 30.03.2021. Subsequently, on 22.03.2022 the AO has issued draft assessment order and show cause. The AO mentioned in the assessment order that there was no compliance, therefore, the AO passed an ex-parte order on 24.03.2022 adding Rs.65,36,125/- u/s 69A of the Act. Thus, it is observed from the assessment order that the draft assessment order and show cause was issued on 22.03.2022. Thus, there was hardly a short time provided to the assessee for rebutting the draft assessment order. It is also observed that the ld. CIT(A) has dismissed the appeal on the ground that three notices were served on the assessee and the assessee had not complied any of the notices. The ld. CIT(A) has failed to discuss any of the grounds raised by the assessee. In this facts and circumstances of the case it is observed that both the ld. CIT(A) as well as AO has passed ex- parte order.
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2 The Hon’ble Bombay High Court has held in the case of Pr. CIT(Central) Vs. Premkumar Arjundas Luthra (HUF) (Bombay) / [2017] 297 CTR 614 (Bombay) as under : Quote, “8.From the aforesaid provisions, it is very clear once an appeal is preferred before the CIT(A), then in disposing of the appeal, he is obliged to make such further inquiry that he thinks fit or direct the Assessing Officer to make further inquiry and report the result of the same to him as found in Section 250(4) of the Act.
Further Section 250(6) of the Act obliges the CIT(A) to dispose of an appeal in writing after stating the points for determination and then render a decision on each of the points which arise for consideration with reasons in support. Section 251(1)(a) and (b) of the Act provide that while disposing of appeal the CIT(A) would have the power to confirm, reduce, enhance or annul an assessment and/or penalty. Besides Explanation to sub-section (2) of Section 251 of the Act also makes it clear that while considering the appeal, the CIT(A) would be entitled to consider and decide any issue arising in the proceedings before him in appeal filed for its consideration, even if the issue is not raised by the appellant in its appeal before the CIT(A). Thus once an assessee files an appeal under Section 246A of the Act, it is not open to him as of right to withdraw or not press the appeal. In fact the CIT(A) is obliged to dispose of the appeal on merits. In fact with effect from 1st June, 2001 the power of the CIT(A) to set aside the order of the Assessing Officer and restore it to the Assessing Officer for passing a fresh order stands withdrawn.
Therefore, it would be noticed that the powers of the CIT(A) is coterminous with that of the Assessing Officer i.e. he can do all that 4 Assessing Officer could do. Therefore just as it is not open to the Girish Ratanlal Murkya
Assessing Officer to not complete the assessment by allowing the assessee to withdraw its return of income, it is not open to the assessee in appeal to withdraw and/or the CIT(A) to dismiss the appeal on account of non-prosecution of the appeal by the assessee. This is amply clear from the Section 251(1)(a) and (b) and Explanation to Section 251(2) of the Act which requires the CIT(A) to apply his mind to all the issues which arise from the impugned order before him whether or not the same has been raised by the appellant before him. Accordingly, the law does not empower the CIT(A) to dismiss the appeal for non- prosecution as is evident from the provisions of the Act.” Unquote.
Thus, the Hon’ble Bombay High Court has categorically held that ld. CIT(A) has to decide the appeal on merit and ld. CIT(A) does not have any power to dismiss appeal for non-prosecution.
In view of the above, the order of the ld. CIT(A)[NFAC] is set- aside to ld.CIT(A) for denovo adjudication. The ld. CIT(A) shall provide opportunity of hearing to the assessee.
In the result, appeal of the assessee is allowed for statistical purpose.
Order pronounced in the open Court on 28th August, 2024. (SATBEER SINGH GODARA) ACCOUNTANT MEMBER पुणे / Pune; ददिधंक / Dated : 28th August, 2024 5 RK Girish Ratanlal Murkya
आदेशकीप्रनिनलनपअग्रेनर्ि / Copy of the Order forwarded to : अपीलधर्थी / The Appellant. 1. प्रत्यर्थी / The Respondent.
The CIT(A), concerned.
The Pr. CIT, concerned. नवभधगीयप्रनिनिनर्, आयकर अपीलीय अनर्करण, “ए” बेंच, 5. पुणे / DR, ITAT, “A” Bench, Pune. गधर्ाफ़धइल / Guard File. 6. आदेशधिुसधर / BY ORDER, //// Senior Private Secretary आयकर अपीलीय अनर्करण, पुणे/ITAT, Pune.
S. No Details Date Initials Designation 1 27.08.2024 Draft dictated on Sr. PS/PS 2 Final Draft placed before author 28.08.2024 Sr. PS/PS 3 JM/AM Draft proposed & placed before the Second Member 4 Draft discussed/approved by Second Member AM/AM 5 Approved Draft comes to the Sr. PS/PS Sr. PS/PS 6 Kept for pronouncement on Sr. PS/PS 7 Date of uploading of Order Sr. PS/PS 8 File sent to Bench Clerk Sr. PS/PS 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R. 11 Date of Dispatch of order
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