BOPPANA ASHOK KUMAR,GANNAVARAM V. INCOME TAX OFFICER, WARD-3(1), VIJAYAWADA

ITA 392/VIZ/2025

AI Insights

The case involves Boppana Ashok Kumar, who appealed against the order of the Commissioner of Income-Tax (Appeals), which had dismissed his appeal for non-prosecution. The original dispute arose from the Assessing Officer's re-characterization of the assessee's declared agricultural income as income from other sources due to lack of substantiating evidence. The CIT(A) dismissed the appeal without merit consideration, leading to the assessee's appeal to the Income Tax Appellate Tribunal. The Tribunal found that the CIT(A) had erred in dismissing the appeal solely on the grounds of non-prosecution and mandated a decision on the merits of the case.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 716707 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-08-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2021-2022
• Appeal Filed On: 13-06-2025
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside; Opportunity of being heard
• Section: 143(3); 68

Judgement Text

"आयकर अपीलीय अधिकरण, विशाखापटणम पीठ में IN THE INCOME TAX APPELLATE TRIBUNAL Visakhapatnam Bench श्री रिीश सूद, माननीय न्याययक सदस्य एिं श्री एस. बालक ृष्णन, माननीय लेखा सदस्य SHRI RAVISH SOOD, HON’BLE JUDICIAL MEMBER AND SHRI BALAKRISHNAN. S, HON’BLE ACCOUNTANT MEMBER, आयकरअपीलसं./I.T.A.No.392/Viz/2025 (निर्धारण वर्ा/ Assessment Year: 2021-22) Boppana Ashok Kumar, Gannavaram, Krishna District. PAN : AKPPB2047K Vs. The Income Tax Officer, Ward – 3(1), Vijayawada. (अपीलार्थी/ Appellant) (प्रत्यर्थी/ Respondent) करदाता का प्रतततितित्व/ Assessee Represented by : Smt. Aruna, Advocate, राजस्व का प्रतततितित्व/ Department Represented by : Dr. Aparna Villuri, Sr.DR सुिवाई समाप्त होिे की ततति/ Date of Conclusion of Hearing : 06.08.2025 घोर्णध की तधरीख/ Date of Pronouncement : 20.08.2025 O R D E R प्रनत रवीश सूद, जे.एम./PER RAVISH SOOD, J.M. The present appeal filed by the assessee is directed against the order passed by the Commissioner of Income-Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi, dated 11.03.2025, which in turn arises from the order passed by the Assessing Officer (for short “A.O.”) Printed from counselvise.com 2 ITA No.392/Viz/2025 Boppana Ashok Kumar u/s 143(3) of the Income Tax Act, 1961 (for short “the Act”) dated 23.12.2022 for A.Y. 2021-22. The assessee has assailed the impugned order on the following grounds of appeal before us: “1. The order of learned Commissioner of Income Tax (Appeals) is contrary to the facts and also the law applicable to the facts of the case. 2. The learned Commissioner of Income Tax (Appeals) is not justified in dismissing the appeal in limine without rendering any decision on the merits of the case. 3. The learned Commissioner of Income Tax (Appeals) ought to have deleted the addition of Rs.28,44,127 made by the assessing officer u/s 68 of the Act by considering the agricultural income as unexplained. 4. Any other ground that may be urged at the time of appeal hearing.” 2. Succinctly stated, the assessee had filed his return of income for A.Y. 2021-22, declaring an income of Rs. 2,45,900/-. Subsequently, the case of the assessee was selected for scrutiny assessment under Section 143(2) of the Act. 3. During the course of assessment proceedings, the A.O. observed that the assessee had disclosed gross agricultural income of Rs.28,44,127/- in his return of income for the year under consideration. However, the A.O. observed that in “Schedule EI” of the return of income, the assessee had not mentioned about any expenses incurred against the earning of agricultural income. Also, the assessee, on being queried, had confirmed that no accounts were maintained by him for Printed from counselvise.com 3 ITA No.392/Viz/2025 Boppana Ashok Kumar agricultural activities, and, therefore, he was unable to produce the bills for the expenses so incurred. The A.O. further observed that the assessee had failed to place any documentary evidence, bills, or vouchers which could evidence that the amounts credited in his bank account were the sale proceeds of agricultural produce. Although, it was the claim of the assessee that he had, during the subject year, earned a gross agricultural income of Rs.39,98,722/- against which he had incurred expenses of Rs.11,54,595/-, which thus left him with a net income of Rs. 28,44,127/- (supra), but he had failed to substantiate the same. Also, the A.O. took note of the fact that the assessee had failed to place on record any documentary evidence that would support his claim of having incurred expenses amounting to Rs.11,54,595/- on seeds, sales, labour, fertilizers, pesticides etc. Apart from that, the A.O. observed that the assessee could not provide the details of the parties to whom the agriculture produce was sold by him. Accordingly, the A.O., based on his aforesaid deliberations re-characterized the agricultural income of Rs. 28.44 lacs (approx.) disclosed by the assessee as his income from other sources. 4. Aggrieved, the assessee carried the matter in appeal before the CIT(A). As the assessee, despite having been put to notice about the Printed from counselvise.com 4 ITA No.392/Viz/2025 Boppana Ashok Kumar hearing of the appeal on four occasions i.e. 19.12.2024, 31.12.2024, 15.01.2024 and 28.02.2025 neither participated in the proceedings nor filed any written submissions, therefore, the CIT(A) proceeded to dispose of the appeal based on the facts available on record and dismissed the appeal for non-prosecution. For the sake of clarity, the observations of the CIT(A) are culled out as under : “Findings and Decision : 4. The appeal was taken up and notices dated 19.12.2024, 31.12.2024, 15.01.2025 and 28.02.2025 were issued to the appellant fixing hearing on 24.12.2024, 06.01.2025, 20.01.2025 and 07.03.2025. However, the appellant neither responded on that date nor any adjournment was sought. No written submission was also filed. In view of repeated ignorance of the notices, it was clear that the appellant was not interested in pursuing appeal. 4.1 appellant has shown that he is not interested in pursuing the appeal. In view of these any written submission, the facts, I have no alternative but to dismiss the appeal of the appellant for non-prosecution as it cannot be kept pending adjudication for indefinite period. It is the duty of the appellant to make necessary arrangements for effective representation on the appointed date. Mere filing of an appeal is not enough, rather it requires effective prosecution also. Therefore, the appeal is found liable for dismissal. This view is supported by the following judicial pronouncements:- (i) CIT vs Multiplan India Ltd. 38 ITD 320(Del) (ii) Estate of Late Tukojirao Holkar vs. CWT 223 ITR 480 (M.P.) (iii) New Diwan Oil Mills vs. CIT (2008) 296 ITR 495 (P&H) (iv) CIT vs. B. N. Bhatachargee And Another 118 ITR 461 (SC). 4.2 The Hon'ble ITAT, Jabalpur Bench, Jabalpur in the case of M/s Bindra Warehousing Corporation, Itarsi vs ITO, ITA No. 153/Jab/2016 and in Jabalpur Sahkari Dugdh Sangh vs ITO, ITA No. 201 to 203/Jab/2015 has found assessee as not interested in pursuing appeal on the basis of just one non-attendance before the Hon'ble Tribunal. The Tribunal has dismissed appeals for non prosecution. The Tribunal has held as follows:- Printed from counselvise.com 5 ITA No.392/Viz/2025 Boppana Ashok Kumar \"At the time of hearing, none appeared on behalf of the assessee. The notice of hearing was sent to the assessee through RPAD, but there was no compliance on behalf of the assessee. Even no application seeking adjournment was filed. The laws aid those who are vigilant, not those who sleep upon their rights. This principle is embodied in well known dictum \"VIGILANTIBUS ET NON DORMIENTIBUS JURA SUBVENIUN Under these circumstances, in our considered opinion assessee is not interest in prosecuting the appeal. As such we hold that this appeal is liable to be dismissed for non prosecution.\" 4.3 Respectfully, following the view taken in the cases cited at para-4.1 above and the decision of Hon'ble ITAT, Jabalpur Bench, Jabalpur in the cases cited (supra), the appeal filed by the appellant is liable for dismissal for non- prosecution. 5. In the result, the appeal is dismissed.” 5. The assessee, being aggrieved with the order of the CIT(A), has carried the matter in appeal before us. 6. We have heard the learned Authorized Representatives of both parties, perused the orders of lower authorities and the material available on record. 7. Admittedly, it is a matter of fact discernible from the record that the assessee, despite having been put to notice about the fixation of appeal vide notices dated 19.12.2024, 31.12.2024, 15.01.2025 and 28.02.2025, had neither participated in the said proceedings nor furnished any written submissions to support the grounds based on which the impugned order of assessment was assailed before the CIT(A). Although, we principally concur with the CIT(A) that in a case, the Printed from counselvise.com 6 ITA No.392/Viz/2025 Boppana Ashok Kumar assessee chooses not to participate in the appellate proceedings, then the proceedings cannot be stalled and have to be proceeded with and disposed of, but are unable to concur with the manner in which he has disposed of the present appeal on the ground of non-prosecution. We are unable to persuade ourselves to accept the manner in which the appeal of the assessee had been disposed off by the CIT(Appeals). In our considered view, once an appeal is preferred before the CIT(Appeals), it becomes obligatory on his part to dispose off the same on merits and it is not open for him to summarily dismiss the appeal on account of non- prosecution of the same by the assessee. Rather, a perusal of Sec.251(1)(a) and (b), as well as the “Explanation” to Sec.251(2) of the Act reveals that the CIT(Appeals) remains under a statutory obligation to apply his mind to all the issues which arise from the impugned order before him. As per the mandate of the law the CIT(Appeals) is not vested with any power to summarily dismiss the appeal for non-prosecution. Our aforesaid view is fortified by the judgment of the Hon'ble High Court of Bombay in the case of CIT Vs. Premkumar Arjundas Luthra (HUF) (2017) 297 CTR 614 (Bom). In the aforementioned case the Hon’ble High Court observed as under: \"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 AO to make Printed from counselvise.com 7 ITA No.392/Viz/2025 Boppana Ashok Kumar further inquiry and report the result of the same to him as found in Sec. 250 of the Act. Further, Sec. 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. Sec. 251(1)(a) and (h) 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-s. (2) of s. 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 s. 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 w.e.f. 1st June, 2001 the power of the CIT(A) to set aside the order of the AO and restore it to the AO for passing a fresh order stands withdrawn. Therefore, it would be noticed that the powers of the CIT(A) are co-terminus with that of the AO i.e. he can do all that A.O could do. Therefore, just as it is not open to the AO 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 s. 251(1)(a) and (b) and Explanation to Sec. 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.” 8. We, thus, not being able to persuade ourselves to subscribe to the summary dismissal of the appeal by the CIT(A) for non-prosecution, therefore, set-aside his order with a direction to dispose off the same on merits. Needless to say, the CIT(A) shall in the course of the set-aside proceedings afford a reasonable opportunity of being heard to the assessee. As we have set aside the matter to the file of CIT(A) for fresh adjudication, therefore, we refrain from adverting to and adjudicating Printed from counselvise.com 8 ITA No.392/Viz/2025 Boppana Ashok Kumar the grounds based on which the addition made by the A.O. have been assailed before us which, thus, are left open. 9. Resultantly, the appeal filed by the assessee is allowed for statistical purposes in terms of our aforesaid observations. Order pronounced in the Open Court on 20th August, 2025. Sd/- (एस. बालक ृष्णन) (S. BALAKRISHNAN) लेखा सदस्य/ACCOUNTANT MEMBER Sd/- (रिीश सूद) (RAVISH SOOD) न्यायिक सदस्य/JUDICIAL MEMBER Sd/- Hyderabad, dated 20.08.2025. TYNM/sps आदेशकी प्रनतनलनप अग्रेनर्त/ Copy of the order forwarded to:- 1. निर्धाररती/The Assessee : Boppana Ashok Kumar, D.No.1-114, Sri Nagar Colony, Davigigudem, Gannavaram, Krishna District. 2. रधजस्व/ The Revenue : The Income Tax Officer, Ward –3(1), Vijayawada. 3. The Principal Commissioner of Income Tax, Visakhapatnam. 4. नवभधगीयप्रनतनिनर्, आयकर अपीलीय अनर्करण, / DR, ITAT, Visakhapatnam. 5. गधर्ाफ़धईल / Guard file आदेशधिुसधर / BY ORDER Sr. Private Secretary ITAT, Visakhapatnam Printed from counselvise.com "