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Income Tax Appellate Tribunal, AMRITSAR BENCH, AMRITSAR
Before: DR. M. L. MEENA & SH. ANIKESH BANERJEE
The present appeal has been filed by the assessee against the order of the Ld. CIT(A) National Faceless Appeal Centre (NFAC), Delhi dated 21/10/2022 challenging the order passed ex-parte qua the assessee in respect of Assessment Year 2016-17.
Balraj Wine v. Asstt. CIT 2. At the outset, the ld. counsel for the assessee submitted that there was a short delay of 20 days in filing the appeal which was caused due to technical glitches in the portal. He argued that the appellate order of the ld. CIT(A) dated 21.12.2022 (APB pg. 2) could not be downloaded and the grievance was raised before Samadhan Faceless Appeal through email dated 29.12.2022 (APB pg. 5 & 6). Therefore, the assessee has been provided a copy of the appellate order of CIT(A) through email dated 21.01.2023 to enable the appellant to file the appeal before the Tribunal with the self declaration of the partner. The ld. Addl. CIT-DR has no objection to the request of the counsel for condonation of delay on account of bonafide reasons as above. Accordingly, the short delay of 20 days is hereby condoned and the appeal is admitted on merits.
The ld. counsel for the assessee submitted that the CIT(A) has passed the order ex-parte qua the assessee without providing proper opportunity of hearing as the notices u/s 250 of the Act has been served in ITBA Portal which could not be operated by the employee of the assessee firm dealing with the tax matters. The counsel has argued that the ld. CIT(A) has dismissed the appeal of the appellant for non-prosecution against the settled principle of law as held by the Hon’ble Bombay High
Balraj Wine v. Asstt. CIT Court in the case of CIT v. Premkumar Arjundas Luthra [HUF] 240 Taxman 133 which lays down the principle that the ld. CIT(A) is required to apply his mind to all issues which arises from the impugned order in order to dispose of the appeal on merits.
The ld. counsel further placed the reliance on the judgment of Income Tax Appellate Tribunal Mumbai Bench “E”, Mumbai in the case of Triumph International Finance India Ltd. v. Dy. CIT in order dated 10.03.2022 wherein vide para 4 of the impugned order, the Tribunal has observed as under:
“4. We have heard the submissions made by rival sides. The Assessing Officer vide order dated 21/12/2019 has levied penalty of Rs.10,000/- under section 272A{l)(d) of the Act for non-compliance of the notice issued under section 142(1) of the Act. Undisputedly, no explanation was furnished by the assessee before the Assessing Officer for non-compliance of the notice under section 142(1) of the Act. As per the contentions of ld. Authorized Representative of the assessee, the notice under section 142(1) of the Act was served on the assessee electronically. The Department was gradually moving towards e- assessments and the notices were being served to the assessee online/electronically and the year 2019 being the first year of this shift from physical to electronic mode coupled with the fact that assessee was not carrying out any business operations during the relevant period and hence, was working on minimal employees, the employees of the assessee failed to take not of the notice issued electronically. We are satisfied that the assessee has been able to show reasonable cause for not responding to the initial notice issued under Balraj Wine v. Asstt. CIT section 142(1) of the Act. It is pertinent to mention here that subsequently on learning about ongoing assessment proceedings, the assessee appeared before the Assessing Officer and furnished the requisite details. The Assessing Officer after taking note of the documents/submissions of the assessee has passed the assessment order under section 143(3) of the Act. It is not a case of absolute non-appearance of the assessee before the Assessing Officer.”
The ld. counsel has request that the case may be remanded back to the file of the ld. CIT(A) to adjudicate the matter afresh after granting sufficient opportunity of being heard.
The ld. DR stand by the impugned order. He contended that the assessee has been granted three opportunities, however, he failed to furnish the necessary details required in compliance to the notices issued by the CIT(A). However, he has no objection to the request of the counsel in remanding the matter to the CIT(A) for afresh adjudication of the matter.
We have heard both the sides and perusal of the record and case law cited before us. It is noted that the ld. CIT(A) has passed an order ex-parte qua the assessee by dismissing the appeal of the assessee for non- prosecution by applying Multiplan India Pvt. Ltd. 38 ITD 320 (Delhi). The Hon’ble Bombay High Court in the case of Premkumar Arjundas Luthra (supra) held as under:
Balraj Wine v. Asstt. CIT “8. From the aforesaid provisions, it is very clear once an appeal is preferred before the CIT(A), then in disposing of the appeal, he is obliged to make such further inquiry that he thinks fit or direct the Assessing Officer to make further inquiry and report the result of the same to him as found in Section 250(4) of the Act. Further Section 250(6) of the Act obliges the CIT(A) to dispose of an appeal in writing after stating the points for determination and then render a decision on each of the points which arise for consideration with reasons in support. Section 251 (1)(a) and (b) of the Act provide that while disposing of appeal the CIT(A) would have the power to confirm, reduce, enhance or annul an assessment and/or penalty. Besides Explanation to sub-section (2) of Section 251 of the Act also makes it clear that while considering the appeal, the CIT(A) would be entitled to consider and decide any issue arising in the proceedings before him in appeal filed for its consideration, even if the issue is not raised by the appellant in its appeal before the CIT(A). Thus once an assessee files an appeal under Section 246A of the Act, it is not open to him as of right to withdraw or not press the appeal. In fact the CIT(A) is obliged to dispose of the appeal on merits. In fact with effect from 1st June, 2001 the power of the CIT(A) to set aside the order of the Assessing Officer and restore it to the Assessing Officer for passing a fresh order stands withdrawn. Therefore, it would be noticed that the powers of the CIT(A) is co-terminus with that of the Assessing Officer i.e. he can do all that Assessing Officer could do. Therefore just as it is not open to the Assessing Officer to not complete the assessment by allowing the assessee to withdraw its return of income, it is not open to the assessee in appeal to withdraw and/or the CIT(A) to dismiss the appeal on account of non-prosecution of the appeal by the assessee. This is amply clear from the Section 251(1)(a) and (b) and Explanation to Section 251(2) of the Act which requires the CIT(A) to apply his mind to all the issues which arise from the impugned order before him whether or not the same has been raised by the appellant before him. Accordingly, the law does not empower the CIT(A) to dismiss the appeal for non-prosecution as is evident from the provisions of the Act.”
In view of the principles of natural justice and the factual matrix of the case, we consider it deem fit to remand back the matter to the file of the ld. CIT(A) to adjudicate the grounds of appeal afresh after considering the submissions of the assessee and allowing an adequate opportunity of Balraj Wine v. Asstt. CIT being heard. The assessee is also directed to cooperate in the fresh proceedings before the ld. CIT(A).
In the result, appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open court on 17.03.2023