SHREE SHIRKAL BUILDERS & DEVELOPERS,NAGPUR vs. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2(1), NAGPUR

Since facts and issue involved in these bunch of six appeals are identical, with the agreement of both the parties; are clubbed and heard together for a common & consolidated order.

Briefly stated common facts of these cases are that; 3.1 The assessee firm was identified as non-filer, in whose case a search & seizure action u/s 132 of the Act was carried out on 04/09/2015. During the course of search certain incriminating documents were found & seized, and consequent assessment proceedings by service of notice u/s 153A of the Act were initiated. In absence of return of income and deprecative material on record, the Ld. AO after a due notice to the assessee firm, has culminated the proceedings on the basis of incriminating material and accordingly assessed the total undisclosed income to the best of his judgement by framing separate assessment u/s 144 r.w.s. 153A of the Act.

Without touching merits of the case, in support of grounds of appeal the Ld. AR assailed that, the assessee’s appeals were dismissed in-limine for non- prosecution without dealing therewith on merits; therefore, the impugned consolidated order is suffered from provisions of section 250(6) of the Act. Per contra, the Ld. DR solidifying the aforestated fact stated that, it is not the case that both the tax authorities did provide no opportunity. Indeed the appellant firm was provided as many as five opportunity by the Ld. AO and as many as six hearing by the Ld. CIT(A), but not to surprise these were remained unattended. Therefore if the case is remanded, a token cost may be imposed on the appellant for wasting a valuable time of quasi-judicial authority further with a direction to co-operate with the authorities in remand proceedings.

We have heard the rival contentions of the parties; and subject to provisions of rule 18 of ‘ITAT Rules, 1963’, perused the material placed on record.

In the present case, we observed that in-spite of due notice; the appellant neither filed its return of income nor made any written submission which finally resulted into framing of best judgement assessment by the Ld. AO. Albeit appellant agitated these assessments in an appeal before first appellate authority, however did fail to make effective representation in support of grounds of appeal raised therein. Absence of deprecative material on record and no-response from the appellant assessee constrained the Ld. CIT(A) to proceed the matter ex-parte. However admittedly, while doing so, the Ld. CIT(A) failed adjudicate the matter on merits in terms of section 250(6) of the Act.

Without going into merits of the case, we note that, while exercising the jurisdiction u/s 251(1)(a) of the Act, the Ld. CIT(A) was required to state point of determination, his decision thereon and clear reasons therefore in terms of section 250(6) of the Act. Per contra in the instant case, we find that the Ld. CIT(A) has dismissed these appeals of the appellant for non-prosecution without adjudicating the matter in terms of sub-section (6) of section 250 of the Act, which in our considered view suffered from former compliance. This adjudication by the first appellate authority without touching merits of these cases, in our considered view is not in consonance with the provision of sub- section (6) of section 250 of the Act, for the reasons, without commenting on merits of these cases, we deem fit to set-aside the consolidate impugned order and remit these matters back to the files of Ld. CIT(A) with a direction to deal therewith in accordance with law de-nova on merits after according not more than two opportunities and pass a speaking order in terms of section 250(6) of the Act.

In result, these six appeals are ALLOWED FOR STATISTCIAL PURPOSES. U/r 34 of ITAT Rules, order pronounced in open court on this Thursday, 21st December, 2023.