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Income Tax Appellate Tribunal, ‘A’ BENCH LUCKNOW
Before: HON’BLE SHRI G. D. PADMAHSHALI & SHRI SUBHASH MALGURIA
द्वधरध / Appearances Assessee by : Mr Samrat Chandra [‘Ld. AR’] Revenue by : Mr SK Sharma [‘Ld. DR’] सुनवाई की तारीख / Date of conclusive Hearing : 27/06/2024 घोषणा की तारीख / Date of Pronouncement : 27/06/2024 आदेश / ORDER Per G. D. Padmahshali, AM; Against the ex-parte DIN & Order ITBA/NFAC/S/250/2023-24/1058732175(1) dt. 13/12/2023 passed u/s 250 of the Act by the National Faceless Appeal Centre, Delhi [‘NFAC/CIT(A)’ hereinafter] the assessee came in appeal u/s 253(1)(a) of the Income Tax Act [‘the Act’ hereinafter].
At the physical hearing the Ld. AR without touching the merits, adverting to affidavit placed on record in terms of rule 10 of ITAT Rules, 1963 submitted that, owning to medical reasons he could neither attend any of the notices issued by the Ld. NFAC nor could make any effective representation/submission in support of grounds of appeal. It is however canvassed by the Ld. AR that given an ITAT-Lucknow Page 1 of 4
New Kuldeep Singh Sukhvinder Singh & Ors Vs DCIT AY: 2018-19 opportunity of regress the appellant assessee would sincerely prosecute and represent case on merits by adducing requisite material in support of grounds of appeal raised before the Ld. NFAC. On the other hand, the Ld. DR Mr Sharma could hardly object the request of the appellant.
3. The factual matrix suggest that, the assessee is an association of person [‘AOP’ hereinafter] holding license from State Excise Department of Uttar Pradesh and engaged in trading business of liquor. The original return of income filed u/s 139(1) of the Act was subsequently revised declaring total income of ₹7,45,60,781/-. The case of the assessee selected for complete scrutiny under faceless e-Asstt Scheme-2019, wherein Ld. NeAC made addition of 4,81,30,340/- towards interest computed @ 8.78% on loans advanced to its members, and according framed the assessment u/s 143(3) of the Act vide its order dt. 23/03/2021. Aggrieved assessee assailed the aforestated addition before the first appellate authority however in the absence of any representation the appeal came dismissed ex-parte for non-prosecution.
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. At the outset we are persuaded to accept that the appellant for sufficient cause was prevented from prosecuting the appeal before first appellate authority. In the event we deem it fit to accord one more effective opportunity of being heard by remanding the matter back to the Ld. NFAC for de-novo adjudication.
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New Kuldeep Singh Sukhvinder Singh & Ors Vs DCIT AY: 2018-19 5. Further the record prima-facie reveals that, the assessee for an acceptable & sufficient reason could neither attend nor represent its case before the Ld. NFAC. When assessee failed to represent his case on merits with cogent evidences the Ld. NFAC dismiss the appeal ex-parte for non-prosecution without adjudicating the 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. Therefore, any adjudication in taxation reaches finality utterly for the year of adjudication only and in no case, it does govern any later or subsequent year. This find fortified in ‘Radheshyam Satsang Vs CIT’ [1992, 193 ITR 321 (SC)], ‘AkzoNobel India Pvt. Ltd. Vs Addl CIT’ [2022, in ITA 370/2022, (Del)].
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New Kuldeep Singh Sukhvinder Singh & Ors Vs DCIT AY: 2018-19 7. It is a trite law as laid down by Hon’ble Supreme Court in case ‘Chandra Kishore Jha Vs Mahavir Prasad’ reported 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, 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. In view hereof, we hold that, the impugned adjudication by the Ld. NFAC sidestepping the dictate is not in consonance with provision of s/s (6) of section 250 of the Act.
In view of former discussion & reasoning, without commenting on merits, we set aside the impugned order and remand the file back to the Ld. NFAC with a direction to deal therewith de-novo after according two effective opportunities 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, 27th day of June, 2024
-S/d- -S/d- SUBHASH MALGURIA G. D. PADMAHSHALI JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / PUNE ; दिनाांक / Dated : 27th day of June, 2024 आदेश की प्रनिनलनप अग्रेनर्ि / Copy of the Order forwarded to :
1. 1. अपीलार्थी / The Appellant. 2. प्रत्यर्थी / The Respondent.
3. The CIT(A)-NFAC, Delhi (India) 4. The Concerned CIT 5. DR, ITAT, Bench ‘A’, Pune 6. गार्डफ़ाइल / Guard File. आिेशानुसार / By Order, वररष्ठ दनजी सदिव / Sr. Private Secretary आयकर अपीलीय न्यायादिकरण, पुणे / ITAT, Lucknow ITAT-Lucknow Page 4 of 4