Late Dharma Kautik Sandanshiv, Jalgaon V. Income-tax Officer,

ITA 123/PUN/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1552 (ITAT-PUNE)
• Duration Of Justice: 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 25-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIL CHAWARE

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, PUNE . . , BEFORE SHRI R.K. PANDA, AM . / ITA NO.123/PN/2016 / ASSESSMENT YEAR : 2005-06 LATE DHARMA KAUTIK SANDANSHIV, L/H. SANJEEV DHARMA SANDANSHIV, SURBHI COLONY, AMALNER, DIST : JALGAON PAN NO.BOPPS3511C . / APPELLANT V/S ITO, CIB, NASHIK . / RESPONDENT / APPELLANT BY : NONE / RESPONDENT BY : SHRI ANIL CHAWARE / ORDER PER R.K.PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 09-09-2008 OF THE CIT(A)-II, NASHIK RELATING TO THE ASSESSMENT YEAR 2005-06. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE SERV ICE OF NOTICE. THEREFORE, THE ISSUE IS BEING DECIDED ON THE BASIS OF MATER IAL AVAILABLE ON RECORD AND AFTER HEARING THE LD. DEPARTMENTAL REPRESENTATIVE. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS A N INDIVIDUAL. THE AO HAD ISSUED NOTICE U/S.142(1) TO THE ASSESSEE ON T HE BASIS OF AIR INFORMATION RECEIVED ACCORDING TO WHICH THE ASSESSEE HAS DEPOSITED CASH OF RS.38,18,457/- IN HIS SAVINGS BANK ACCOUNT. DESPIT E STATUTORY NOTICES ISSUED BY THE AO FROM TIME TO TIME, THERE WAS NO APPEARANCE / DATE OF HEARING :21.07.2016 / DATE OF PRONOUNCEMENT:22.07.2016 2 ITA NO.123/PN/2016 ON BEHALF OF THE ASSESSEE. THEREFORE, THE AO PASSED THE ORDER U/S.144 OF THE I.T. ACT ON 27-12-2007 DETERMINING THE TOTAL INCOM E AT RS.38,18,457/- 4. THE ASSESSEE PREFERRED AN APPEAL BEFORE CIT(A) BUT T HERE WAS ALSO NO COMPLIANCE FOR WHICH THE LD.CIT(A) DISMISSED THE APPE AL FILED BY THE ASSESSEE HOLDING THAT THE ASSESSEE IS NOT INTERE STED IN PROSECUTING THE APPEAL AND THE LAW ASSISTS THOSE WHO A RE VIGILANT AND NOT THOSE WHO SLEEP OVER THEIR RIGHTS. HE ACCORDINGLY DIS MISSED THE APPEAL FILED BY THE ASSESSEE. 5. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US. 6. I HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD AND H EARD THE LD. DEPARTMENTAL REPRESENTATIVE. IT IS AN ADMITTED FACT THAT THE ASSESSEE HAS NOT APPEARED BEFORE THE AO FOR WHICH HE HAS PASSED THE EXPARTE ORDER DETERMINING THE TOTAL INCOME AT RS.38,18,457/-. IT IS ALSO AN ADMITTED FACT THAT THE ASSESSEE DID NOT APPEAR BEFORE T HE CIT(A) DESPITE OPPORTUNITIES GIVEN. HOWEVER, I FIND THE LD.CIT(A) INSTEAD O F DECIDING THE APPEAL ON MERIT HAS SIMPLY DISMISSED THE APPEAL FILED BY THE ASSESSEE ON THE GROUND THAT THE ASSESSEE IS NOT INTER ESTED IN PROSECUTION OF THE APPEAL AND THE LAW ASSISTS THOSE WHO ARE VIGILANT AND NOT THOSE WHO SLEEP OVER THEIR RIGHTS. IN MY OPINIO N THE CIT(A) HAS TO DECIDE THE APPEAL ON MERIT AND HE HAS NO POWER TO DISMISS THE APPEAL FO R N ON - APPEARANC E OF TH E ASSESSE E. I N THIS R E GARD , I HAVE P E RUSED SUB - S E C T ION (6) OF T HE SECTION 250 WHICH READS AS U NDE R: - ' (6 ) T H E O RD E R OF TH E CO M MI SSION E R (APPEA L S) D I SP O S I NG OF TH E A PP E AL SH A L L BE I N WRI TING AND S HALL S TATE THE POINTS FOR DETE R MINATION , THE D E CISION TH E REON A ND TH E R E ASON FOR THE D EC ISION . ' 3 ITA NO.123/PN/2016 7 . FROM THE ABOVE PROVISIO N , IT IS EV I DENT THAT THE CIT(A) CANNOT D I SPOSE OF THE APPEA L S U MMAR I LY W ITH OU T STAT I NG T H E POI NT OF D ETER MI N ATIO N A N D T H E D E C I S I O N T H E R EO N GIV I N G RE ASO N S F O R DEC I S I O N . FOR THE ABOVE PROPOSITION I FIND SUPPORT FROM THE DECISION OF THE AHMEDABAD BENCH OF THE TRIBUNAL IN THE CASE OF GUJRAT T HEMIS BIOSYN LTD. VS. JCIT REPORTED IN 74 ITD 339. THEREFORE, I AM OF T H E V I EW THA T THE LD. C I T (A) WAS NOT J USTIF I ED I N DISMISS I NG TH E APPEAL WITHOUT G I VING REASONS FOR DECIS I ON. I, T H E REFOR E, S ET ASIDE TH E O RD E R OF T HE LD. CIT (A) AND DIR E CT H I M TO D I SPOS E OF T H E APP E A L O N M ERIT S BY PASSING A SPEAKING ORD E R. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 22-07-2016. SD/- ( R.K. PANDA ) ACCOUNTANT MEMBER PUNE ; DATED : 22 ND JULY, 2016. '# $# / COPY OF THE ORDER FORWARDED TO : / BY ORDER , // TRUE COPY // // $ % //TRUE &' % * / SR. PRIVATE SECRETARY *, / ITAT, PUNE 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT (A) - II, NASHIK 4. 5. 6. THE CIT-II, NASHIK $ %%*, *, SMC BENCH / DR, ITAT, SMC BENCH PUNE; 2 / GUARD FILE.