Ramit Kochar ORDER
Ramit Kochar, Member (A)
1. This appeal, filed by assessee, being ITA No. 91/Alld/2019, is directed against an appellate order dated 29.03.2019 in Appeal No. CIT(A)-/Fzd/16-17/273/Lko.St. passed by learned Commissioner of Income Tax (Appeals), Lucknow-2, Lucknow, U.P. (hereinafter called "the CIT(A)") for assessment year(ay):2014-15, the appellate proceedings had arisen before learned CIT(A) from assessment order dated 26.12.2016 passed by learned Assessing Officer (hereinafter called "the AO") u/s. 144 read with Section 143(3) of the Income-tax Act, 1961 (hereinafter called "the Act") for ay: 2014-15. We have heard both the parties through virtual court through video conferencing.
2. The brief facts of the case are that the assessment in the case of the assessed was framed by AO u/s. 143(3) read with Section 144 of the 1961 Act vide assessment order dated 26.12.2016, wherein income of the assessee was assessed by AO to the tune of Rs. 68,16,060/-, as against returned income of the assessee of Rs. 12,15,680/-.
3. Aggrieved, by additions made by the AO, the assessee challenged the additions as were made by the AO by filing first appeal with learned CIT(A), who was pleased to dismiss the appeal of the assessee, vide appellate order dated 29.03.2019 passed by learned CIT(A).
4. The assessee being aggrieved by the aforesaid appellate order passed by learned CIT(A) has filed second appeal with Income-Tax Appellate Tribunal, Allahabad (hereinafter called "the tribunal").
5. This appeal was heard by Division Bench of the tribunal through video conferencing mode. The ld. Counsel for the assessee opened arguments before the Bench and stated that it is an ex-parte appellate order passed by learned CIT(A) where in appeal of the assessee was dismissed by Ld. CIT(A) ex-parte in the absence of assessee in limine without discussing the issues on merits. It was submitted that the assessee raised as many as 12 grounds of appeal before ld. CIT(A) challenging the additions as were made by AO to the returned income, but ld. CIT(A) did not adjudicated these twelve grounds on merit, but rather dismissed the appeal of the assessee in limine ex-parte on the grounds that the assessee did not appear before ld. CIT(A), without discussing the issues raised by assessee in its appeal before ld. CIT(A) on merit. Prayers were made by ld. Counsel for the assessee for setting aside the appellate order passed by learned CIT(A) and restoring the issues to the file of learned CIT(A) for fresh adjudication of appeal of the assessee by learned CIT(A). The ld. Counsel for the assessee had filed written submissions before the Bench in which it is averred that ld. CIT(A) cannot dismiss the grounds of appeal in limine, without discussing the issues on merits. The reliance is placed on the decision of Hon'ble Supreme Court in the case of CIT v. S. Chenniappa Mudaliar MANU/SC/0197/1969 : (1969) 74 ITR 41 (SC) and decision of ITAT, Kolkatta (TM) in the case of Partha Mitra v. ITO reported in MANU/IK/0463/2016 : (2016) 161 ITD 25 (Kolkatta-trib.). The learned counsel for the assessee also relied upon provisions of Section 250(6) of the 1961 Act. The ld. Counsel for the assessee stated before the Bench that the assessee will duly cooperate with learned CIT(A) when the appeal will come up for hearing before learned CIT(A) in second round of litigation. The ld. DR fairly submitted that Revenue has no objection if the matter is restored to the file of learned CIT(A) for fresh adjudication on merits in accordance with law.
6. We have heard rival parties through video conferencing mode and perused the material on record. We have observed that the assessment proceedings were initiated by Revenue against assessee by invoking provisions of Section 143(2) read with Section 143(3) of the 1961 Act, which culminated into an assessment order dated 26.12.2016 passed by AO u/s. 143(3) read with Section 144 of the 1961 Act, wherein income of the assessee was assessed by AO to the tune of Rs. 68,16,060/- as against returned income of the assessee of Rs. 12,15,680/-. The assessee filed first appeal before learned CIT(A). The learned CIT(A) gave several opportunities of hearing to the assessee as are stated/extracted in the appellate order passed by learned CIT(A), but the assessee sought adjournment on two occasions while on other occasions when the appeal was fixed before ld. CIT(A), the assessee did not appear before ld. CIT(A), who was then pleased to dismiss the appeal of the assessee in the absence of the assessee, in limine without discussing the issues on merits which were raised by assessee in as many as 12 grounds of appeal in the memo of appeal filed with ld. CIT(A) and the assessment order passed by the AO was upheld by learned CIT(A) wherein appeal filed by the assessee stood dismissed by ld. CIT(A). Reference is made to provisions of Section 250(6) of the 1961 Act, wherein learned CIT(A) is obligated to state points for determination in appeal before him, the decision thereon and the reasons for determination. On the part of the assessee, there was a consistent failure to appear before the learned CIT(A) when the appeal was called for hearing before learned CIT(A), which led learned CIT(A) to pass an ex-parte appellate order. Thus, assessee is equally to be blamed for its woes as the assessee did not appear before the learned CIT(A). Now, before us, both the parties have submitted that the appellate order passed by learned CIT(A) be set aside and matter be remanded back to the file of learned CIT(A) for fresh adjudication of the appeal filed by assessee with learned CIT(A). After considering the entire material on record, we are of the considered view that the interest of justice will be served if the appellate order dated 29.03.2019 passed by ld. CIT(A) be set aside and the matter is set aside/restored back to the file of learned CIT(A) for fresh adjudication of all the twelve grounds of appeal raised by assessee in its appeal filed with learned CIT(A). The assessee did not co-operated with learned CIT(A) in the first round of litigation and if in the set aside remand proceedings, if the assessee again did not co-operate, the learned CIT(A) shall be free to decide all the issues raised by assessee, on merits in accordance with law. Reference is also drawn to powers of learned CIT(A) as are contained in Section 251(1)(a) of the 1961 Act, which also include power of enhancement. Needless to say that the learned CIT(A) shall give proper and adequate opportunity of being heard to the assessee in accordance with principles of natural justice in the set aside remand proceedings for denovo adjudication of the appeal of the assessee filed before learned CIT(A). We order accordingly.
7. In the result, the appeal filed by the assessee with tribunal in ITA No. 91/Alld./2019 for ay: 2014-15 is allowed for statistical purposes, as indicated above.
Order pronounced in the open court on 22/04/2021 at Allahabad at the conclusion of hearing in the presence of both the parties
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