SUMEET SALUJA,NEW DELHI vs. ITO, WARD-33(2), NEW DELHI

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ITA 6235/DEL/2019Status: DisposedITAT Delhi12 June 2023AY 2014-153 pages
AI SummaryRemanded

What did the Tribunal hold?

The ITAT held that the CIT(A) has no power to dismiss an appeal for non-prosecution and must decide on merits as per Section 250(6) of the Act. The order of the CIT(A) was set aside.

What were the facts?

The assessee challenged an addition made by the AO under Section 2(22)(e) of the Act. The CIT(A) dismissed the assessee's appeal for want of prosecution and non-attendance, without addressing the merits of the case.

What were the issues?

Whether the CIT(A) can dismiss an appeal for non-prosecution without deciding on merits. The requirement for the CIT(A) to state points for determination and decide them with reasons.

Which sections of the Income-tax Act were involved?

Section 2(22)(e),Section 143(3),Section 250(6)

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Income Tax Appellate Tribunal, DELHI BENCH “G” DELHI

Before: SHRI CHANDRA MOHAN GARG & SHRI PRADIP KUMAR KEDIA

For Appellant: Shri Anjit Yadav, AR
For Respondent: Shri H.K. Choudhary, CIT-DR

The captioned appeal has been filed at the instance of the assessee against the order of the Commissioner of Income Tax (Appeals)-XI, New Delhi [‘CIT(A)’ in short] dated 23.01.2017 arising from the assessment order dated 27.12.2016 passed by the Assessing Officer (AO) under Section 143(3) of the Income Tax Act, 1961 (the Act) concerning AY 2014-15.

2.

As per its grounds of appeal, the assessee has challenged the addition made by the Assessing Officer to the tune of Rs.55,24,218/- under Section 2(22)(e) of the Act.

3.

When the matter was called for hearing, none appeared for the assessee. Accordingly, the matter is proceeded ex-parte.

4.

On perusal of the order of the CIT(A), we straightaway notice that the CIT(A) has dismissed the appeal before it for want of prosecution and nonattendance by a very cryptic order. The CIT(A) eventually declined to entertain the adjournment invoked the doctrine of vigilantibus non dormientibus wherein its is ordained so-

• Law will help only those who are vigilant. Law will not assist those who are careless of his/her right. In order to claim one’s right, she/he must be watchful of his/her right. Only those persons, who are watchful and careful of using his/her rights, are entitled to the benefits of law.

• A person who has kept mum during the statutory period cannot claim for the enforcement of right after the statutory limitation.

5.

We straightway refer to Section 250(6) of the Act which enjoins that the CIT(A) shall state the points for determination before it and the decision shall be rendered on such points alongwith reasons for the decision. Thus, it is incumbent upon the CIT(A) to deal with the grounds on merits even in ex parte order. In view of Section 250(6) of the Act, the CIT(A) has no power to dismiss an appeal on account of non-prosecution. This view is also taken by the Hon’ble Bombay High Court in case of CIT vs. Premkumar Arjundas Luthra HUF (2017) 291 CTR 614 (Bom.). A bare glance of the order of the CIT(A) shows that CIT(A) has not addressed itself on the various points placed for its determination at all and dismissed the appeal of assessee for default in non appearance. Needless to say, the CIT(A) plays role of both adjudicating authority as well as appellate authority. Thus, the CIT(A) could not have shunned the appeal for non-compliance without addressing the issue on merits.

6.

In the totality of the circumstances, we consider it just and expedient to restore the matter back to the CIT(A) in the larger interest of justice with a view to enable the assessee to avail proper opportunity for disposal of appeal by the CIT(A) on various points. Needless to say, the assessee shall extend full co- operation to the CIT(A) without any demur, failing which, the CIT(A) shall at liberty to conclude the appellate proceedings in accordance with law. Hence, the order of the CIT(A) appealed against, is set aside and all the issues raised in the impugned appeal are restored back to the file of the CIT(A) for fresh adjudication in accordance with law after giving reasonable opportunity of hearing to the assessee.

7.

In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court on 12/06/2023.

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