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Income Tax Appellate Tribunal, DELHI BENCH “SMC” DELHI
Before: SHRI KUL BHARAT & SHRI PRADIP KUMAR KEDIA
Appellant by: Shri Akhilesh Kumar, Adv. Respondent by: Shri Om Parkash, Sr.DR Date of hearing: 27 04 2023 Date of pronouncement: 27 04 2023 O R D E R PER PRADIP KUMAR KEDIA, A.M.:
The captioned appeal has been filed by the Assessee against the order of the Commissioner of Income Tax (Appeals), NFAC, Delhi (‘CIT(A)’ in short) dated 25.07.2022 arising from the assessment order dated 12.12.2017 passed by the Assessing Officer (AO) under Section 143(3) r.w. Section 147 of the Income Tax Act, 1961 (the Act) concerning AY 2010-11.
As per the grounds of appeal, the assessee has challenged the summary dismissal of the first appeal by the ld. CIT(A) in limine by an ex-parte order.
3. When the matter was called for hearing, the ld. counsel for the assessee submitted that the assessee is an uneducated lady who could not understand the case and the legal procedures in its prospective and therefore omitted to respond to the statutory notices by the Revenue Authorities inadvertently and without any mala fides. The matter was entrusted to CA Shri Adhir Garg who did not attend the proceedings before the CIT(A). The ld. counsel also submitted that the CIT(A) has not adjudicated the case on merits.
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 dismissed the appeal of the assessee in limine and essentially 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.
4.1 The judgments in the case of B.N. Chattarcharjee and Another, 118 ITR 461 (SC); Estate of Late Tukojiroa Holkar vs. CWT, (1997) 223 ITR 480) (MP); and CIT vs. Multiplan India (P) Ltd. (1991) (38 ITD 320) were relied upon by the CIT(A) while dismissing the appeal on the grounds of non prosecution.
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 glace 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 nonappearance. 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.
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 presenting its case before the CIT(A). Needless to say, the assessee shall extend full co-operation to the CIT(A) without any demur, failing which, the CIT(A) shall be 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 arising 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.
In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court on 27/04/2023.