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Income Tax Appellate Tribunal, CIRCUIT ‘SMC’ BENCH, VARANASI
Before: SHRI.VIJAY PAL RAO
SHRI VIJAY PAL RAO, JUDICIAL MEMBER: This appeal by the assessee is directed against the order dated 9.12.2019 of CIT(A) for the assessment year 2016-17. The assessee has raised the following grounds:- “1. Because the Ld. Commissioner of Income Tax (Appeals) erred in law and on facts in refusing to entertain the appeal of the assessee and rejecting the same on the ground that the assessee is not serious in prosecuting the appeal, which is impermissible in law and it is settled that in any view of the matter, the Ld. CIT(A) is bound under law to adjudicate the appeal on its merits, on the basis of material available on record or law. 2. Because, the Ld. Commissioner of Income Tax (Appeals) erred in law, and on facts in confirming the order of assessment which is otherwise also unsustainable and bad in law gifts received from relatives which is exempt u/s 56 of the Income Tax Act, 1961. The additions and disallowances made to the returned income of the assessee has been made without there being any evidence or material on record. 3. Because, the Ld. Commissioner of Income Tax (Appeals) erred in law as well as on facts in failing to appreciate that the impugned order of assessment is nonest in law as the same has been passed without allowing deduction u/s 80DDB and hence the proceedings are illegal and bad in law.
ITA No.86/VNS/2020 Pradeep Tripathi
Because, on facts and in the circumstances of the case, the order of assessment is bad in law being barred by limitation. 5. Because, on the facts and in the circumstances of the case, the assessment order is bad in law as the Assessing Officer was not having the jurisdiction to assessee the instant assessee. 6. Because, on the facts and in the circumstances of the case, the CIT(A) has passed the order without providing the assessee with a due and proper opportunity of hearing and therefore, the impugned order deserves to be set aside being bad in law. 7. The humble assessee, craves for leave to add/amend any other ground with the prior permission of the Hon’ble Tribunal.”
None has appeared on behalf of the assessee when this appeal was called for hearing. At the outset, it is noted that the CIT(A) has not decided the appeal of the assessee on merits but the same was dismissed in limine for want of prosecution. Accordingly, this appeal was taken up for hearing and adjudication ex parte. 3. I have heard the learned DR and carefully perused the impugned order of CIT(A). The CIT(A) has not decided the appeal of the assessee on merits but the same was dismissed for want of non prosecution as under:- “5. The aforesaid non-compliance on part of appellant reveals beyond doubt that appellant has nothing to say in the matter of this appeal. It can be concluded that appellant is not interested in prosecution of the present appeal and same is liable to be dismissed on this ground itself. The law assists those who are vigilant and not those who sleep over their rights. This principle is embodied in well known dictum “VIGILANTIBUS, NON DORMENTIBUS, JURA SUBVENIUNT”. In view of the above mentioned facts and by placing reliance on decision of Hon'ble ITAT, Delhi Bench in case of CIT vs. Multiplan India Ltd. reported in 38 ITD 320 and decision of Hon'ble M.P. High Court in case of Estate of Late TukojiRaoHolkar vs. CWT (1997) reported in 223 ITR 480 the present appeal is liable to be dismissed.”
Though the CIT(A) has mentioned in the impugned order that various opportunities were granted to the assessee but there was no representation on behalf of the assessee. However, even if there was no representation on behalf of 2
ITA No.86/VNS/2020 Pradeep Tripathi
the assessee, the appeal of the assessee ought to have been decided on merits by a speaking order. Accordingly, in the facts and circumstances of the case and in the interest of justice, the impugned order of the CIT(A) is set aside and the matter is remanded to the record of the CIT(A) for deciding the same afresh after giving one more opportunity of hearing to the assessee. 5. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court on conclusion of hearing on 25.05.2022.
Sd/- [VIJAY PAL RAO] JUDICIAL MEMBER DATED: 25/05/2022 Varanasi Sh Copy forwarded to: 1. Appellant 2. Respondent 3. CIT(A),Varanasi 4. CIT 5. DR By order Sr. P.S.
ITA No.86/VNS/2020 Pradeep Tripathi