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Income Tax Appellate Tribunal, CHANDIGARH
Before: SHRI MAHAVIR SINGH & SHRI KRINWANT SAHAY,
आदेश/ORDER
PER KRINWANT SAHAY, AM
This appeal by assessee is arising out of the order of ld. CIT(A) NFAC, Delhi in appeal No. CIT A Shimla/10259/2019-20 order dated 24.04.2024. The assessment was framed by ITO Ward Nahan for the assessment year 2017-18 under Section 143(3) of the Income Tax Act, 1961 (hereinafter ‘the Act’) vide his order dated 29.11.2019.
At the outset, the ld. Counsel for the assessee pointed out to first and second ground and stated that the ld. CIT(A) erred in passing ex-parte order and dismissing the same on account of non-prosecution without dismissing on the merits of the case.
The ld. Counsel for the assessee pointed out the following ground No. 1 and 2 :
“1. That on the facts and circumstances of the case and in law, the Ld. Commissioner of Income tax (Appeals) [hereinafter referred to as 'Ld. CIT (A)'] has grossly erred in dismissing the appeal filed by the Appellant for non prosecution in violation of section 250(4) and section 250(6) of the Income tax Act, 1961 That on the facts and circumstances of the case and in law, the Ld. CIT (A) has grossly erred in not appreciating that CIT(A) is obliged to decide each of the points arising out of the appeal even in an ex-parte order. In view of Section 250(4) and 250(6) of the Act, Ld. CIT(A) has no power to dismiss an appeal on account of non-prosecution without discussing the merits of the case.”
Ld. Counsel for the assessee took us through the order of ld. CIT(A) and stated that the order is ex-parte and moreover, the CIT(A) has not passed a speaking order. When it was confronted to ld. Counsel for the assessee that the CIT(A) has fixed this appeal at least six times and there is no representation from assessee side, he could not controvert the above fact situation.
On the other hand the Sr.DR argued that despite numerous opportunities given by CIT(A), assessee did not represent and he was under constraint to pass the ex-parte order. She also argued that the ld. CIT(A) has noted merits of the case also in para 3.3.
After hearing rival contentions and going through the facts of the case we noted that the CIT(A) has allowed opportunity of being heard six times by issuing various notices which are available on Income Tax e-Portal. We noted that the assessee has not cooperated with the prosecution of this appeal with CIT(A) and hence, CIT(A) passed this order ex-parte. However, on going through the merits of the case the CIT(A) has made passing remarks that the burden of proof is on the person who made the claim and consequent action of the AO by observing that all allowances, deduction, exemptions, claims or losses etc.. is nothing but unduly justified claim of the assessee. We observe that the order of CIT(A) is non speaking order and it is the duty of the CIT(A) to pass order on merits even though he passes the order in default of assessee based on material available on records, which is lacking. In terms of the above, we set aside this order of CIT(A) and remand the matter back to his file subject to the condition that the assessee will pay a sum of Rs.5000/- as cost to Legal Aid Authority, Hon'ble High Court of Himachal Pradesh. The assessee will pay this cost on before 28.02.2025 and will show the receipt to the CIT(A) before adjudication by CIT(A). In terms of the above, the order of CIT(A) is set aside and matter remanded back to his file for fresh adjudication allowing reasonable opportunity of being heard to the assessee.
Appeal of the assessee is allowed for statistical purposes.