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Income Tax Appellate Tribunal, ‘SMC’ BENCH LUCKNOW
Before: HON’BLE SHRI G. D. PADMAHSHALI & SHRI SUBHASH MALGURIA
IN THE INCOME TAX APPELLATE TRIBUNAL, ‘SMC’ BENCH LUCKNOW BEFORE HON’BLE SHRI G. D. PADMAHSHALI, ACCOUNTANT MEMBER AND SHRI SUBHASH MALGURIA, JUDICIAL MEMBER आयकर अपील सं. / ITA No. 147/LKW/2024 निर्धारण वर्ा / Assessment Year : 2015-16 M/s Vindhyavasini Automobile Haidergarh Road, Kothi, Barabanki, UP-255119 PAN: AALFV1251B . . . . . . . अपीलार्थी / Appellant
बिधम / V/s. Dy./Asstt. Commissioner of Income Tax-3, Lucknow . . . . . . . प्रत्यर्थी / Respondent द्वधरध / Appearances Assessee by : Mr PK Kapoor [‘Ld. AR’] Revenue by : Ms Adita Singh [‘Ld. DR’] सुनवाई की तारीख / Date of conclusive Hearing : 08/07/2024 घोषणा की तारीख / Date of Pronouncement : 11/07/2024 आदेश / ORDER Per G. D. Padmahshali, AM; Against the ex-parte DIN & Order ITBA/NFAC/S/250/2023- 24/1059887486(1) dt. 18/01/2024 passed u/s 250 of the Act by the National Faceless Appeal Centre, Delhi [‘NFAC/CIT(A)’ hereinafter] the assessee company came in appeal u/s 253(1)(a) of the Income Tax Act [‘the Act’ hereinafter].
At the physical hearing without touching the merits of the case, adverting to affidavit placed on record in terms of rule 10 of ITAT Rules, 1963 the Ld. Senior AR Mr Kapoor submitted that, owning to non-receipt notices to the email-address communicated to Ld. NFAC in the From No 35
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M/s Vindhyavasini Automobile Vs DCIT ITA No.147/LKW/2024 AY: 2015-16 the assessee could neither attend any of such notices nor could it make any effective representation/submission in support of grounds of appeal, which resulted into ex-parte dismissal of appeal for non-prosecution. It is however canvassed by the Ld. AR that given an opportunity of regress the assessee would sincerely prosecute and represent its case on merits by adducing requisite material. Adverting to ground number 2 of the appeal on the other hand the Ld. DR Smt Adita Singh dismantled the appellant’s former excuse. It averred on behalf of the Revenue that, on one hand the assessee seeking remand confirming the fact that that ‘owning to non-compliance of notices caused due to illness of partner of the firm, the assessee could not represent its case’ and on other hand it claims it wasn’t in receipt of any such notices on the given email address. The assessee seemingly is blowing hot & cold at a time on the subject matter of service of notice, which indeed were served upon the assessee and which were remained unattended by it. However, since the Ld. NFAC has not dealt with the appeal on merits, the impugned order may at the discretion of the Tribunal be remanded to the first appellate authority with a direction to the assessee to prosecute the same sincerely without seeking unreasoned adjournment.
We have heard rival parties’ submissions on limited issue of remand and subject to rule 18 of ITAT Rules, 1983 perused the material placed on record.
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M/s Vindhyavasini Automobile Vs DCIT ITA No.147/LKW/2024 AY: 2015-16 4. The record prima-facie reveals that, the notices from the Ld. NFAC were not sent to email-address mentioned in the Form No 35. In absence of information of on-going proceedings, these notices remained unattended. In the absence of any reply and written communication in support of grounds of appeal the Ld. NFAC dismiss the appeal ex-parte for non-prosecution without adjudicating it on merits by placing reliance on ‘CIT Vs B. N. Bhattacharjee’ [1997, 118 ITR 461 (SC)], ‘Estate of Late Tukojiro Holkar Vs CWT’ [1997, 223 ITR 480 (MP)] and ‘CIT Vs Multiplan India (P) Ltd.’ [1991, 38 ITD 320].
We are heedful to the restriction placed by clause (a) of sub-section (1) of section 251 of the Act which obligates the Ld. CIT(A) to adjudicate the issue either by confirming or annulling the addition or reducing or enhancing the addition made by the assessing officer without the right to remand the matter back. However, while exercising the jurisdiction u/s 251(1)(a) of the Act, the Ld. CIT(A) is mandated to state point of determination, its decision thereon and clear reasons therefore in terms of section 250(6) of the Act. This exercise by the Ld. CIT(A) is a pre-requisite and invariably necessary for each assessment year in each case irrespective of its repetition. This is because in taxation each assessment year per-se is a separate unit as is governed by its own peculiar facts & features and as such the principle of res- judicata is inapplicable in fiscal laws. It is a trite law as laid down by Hon’ble Supreme Court in case ‘Chandra Kishore Jha Vs Mahavir Prasad’ reported
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M/s Vindhyavasini Automobile Vs DCIT ITA No.147/LKW/2024 AY: 2015-16 in 8 SCC 266 (SC), that ‘if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner’. Therefore the Ld. NFAC has no power to dismiss the appeal ex-parte for non-prosecution without dealing with the merits therefore. This view stands fortified in ‘CIT Vs Premkumar Agundas Luthra HUF’ [2017, 297 CTR 614 (Bom)]. Therefore, in our considered view, in the absence of clear authorisation in the statue permitting the Ld. NFAC to culminate proceedings without touching merits even in ex-parte proceedings is violative of provision of sub-section (6) of section 250 of the Act.
The impugned order passed sidestepping the dictate is since not in consonance with provision of s/s (6) of section 250 of the Act, is set aside and remanded back to Ld. NFAC with a direction to deal therewith de-novo after according two effective opportunities to the appellant assessee and pass a speaking order in terms of section 250(6) of the Act.
The appeal in result is ALLOWED FOR STATISTICAL PURPOSES. In terms of rule 34 of ITAT Rules, the order pronounced in the open court on this Thursday, 11th day of July, 2024
-S/d- -S/d- SUBHASH MALGURIA G. D. PADMAHSHALI JUDICIAL MEMBER ACCOUNTANT MEMBER Lucknow ; दिनाांक / Dated : 11th day of July, 2024 आदेश की प्रनिनलनप अग्रेनर्ि / Copy of the Order forwarded to : 1. अपीलार्थी / The Appellant. 2. प्रत्यर्थी / The Respondent. 3. The CIT(A)-NFAC, Delhi (India) 4. The Concerned CIT 5. DR, ITAT, Bench ‘SMS’, Lucknow 6. गार्डफ़ाइल / Guard File. आिेशानुसार / By Order, Asstt. Registrar आयकर अपीलीय न्यायादिकरण, पुणे / ITAT, Lucknow
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