TUNISHA DIGANT KAPADIA, MUMBAI V. THE DY. COMM OF INCOME TAX CPC, BANGALORE

ITA 1849/MUM/2022

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 8394 (ITAT-MUMBAI)
• Duration Of Justice: 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-08-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2017-2018
• Appeal Filed On: 19-07-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(1); 250

Judgement Text

ITA No.: 1849/Mum/2022 Assessment year: 2017-18 Page 1 of 3 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI ‘H’ BENCH, MUMBAI [Coram: Pramod Kumar (Vice President), and Vikas Awasthy (Judicial Member)] ITA No.: 1849/Mum/2022 Assessment year: 2017-18 Tunisha Digant Kapadia .............................. Appellant 152, Ramanuj, Road No 9, Wadala, Mumbai 400 031[PAN: BOOPK7261N] Vs. Deputy Commissioner of Income Tax, Circle 17(1), Mumbai ............................ Respondent Appearances by: None for the appellant Tejinder Pal Singh for the respondent Date of concluding the hearing : August 10, 2022 Date of pronouncement the order : August 11, 2022 O R D E R Per Pramod Kumar, VP: 1. By way of this appeal, the assessee-appellant has challenged the correctness of the ex- parte order dated 23 rd May 2022, in the matter of assessment under section 143(1) of the Income Tax Act, 1961, for the assessment year 2017-18, summarily dismissing the appeal, for want of prosecution, without dealing with the merits. 2. When this appeal came up for hearing, learned Departmental Representative fairly accepted that the issue is covered by a co-ordinate bench decision of this Tribunal, in the case of Marvel Industries Ltd. Vs DCIT [2022] 140 taxmann.com 430 (Mum)]. We find that a coordinate bench of this Tribunal, and speaking through one of us (i.e. the Vice President), inter alia, has observed as follows: 2. When this appeal came up for hearing, it was noticed that in the impugned ex-parte order, there is no adjudication on merits. Learned CIT(A) has simply dismissed the appeal ITA No.: 1849/Mum/2022 Assessment year: 2017-18 Page 2 of 3 summarily without even referring to the elaborate statement of facts and specific issues raised in the grounds of appeal. When we pointed out this position to the learned Commissioner (DR), she relied upon the stand of the learned CIT(A) and submitted that, in the absence of any specific submissions by the assessee, learned CIT(A) could not have done anything more. It was also pointed out that the assessee has been completely non-operative in the appellate proceedings. We were thus urged to confirm the action of the learned CIT(A) and decline to interfere in the matter. 3. Whether an appellant appears before the CIT(A) or not, it is the statutory obligation of the CIT(A) to dispose of an appeal on merits. The scheme of section 250 does not visualize any situation in which an appeal can be summarily dismissed disregarding the material on recorder. Section 250 (6) lays down that the CIT(A)’s order “disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision”. As for the points of determination, in our considered view, it cannot be open to the learned CIT(A) to disregard what the assessee has placed before him by way of a statement of facts and the grounds of appeal............. 4. The issues implicit in the statement of facts in the grounds of appeals, as extracted above, do raise specific “points for determination” calling for adjudication by the learned CIT(A). While an assessee indeed has, under section 250(2)(a), “the right to be heard at the hearing of the appeal”, such a right of the assessee-appellant cannot be put against the assessee inasmuch while the assessee-appellant is to be essentially extended a fair and reasonable opportunity of hearing before an appeal can be disposed of, the non-exercise of this right by the assessee-appellant cannot be a reason enough for the CIT(A)’s not dealing with the points so raised before him on merits. The exercise of the “right to be heard at the hearing of the appeal” by “the appellant, either in person or by an authorized representative condition”, under section 250(2)(a), is not a condition precedent for the disposal of appeal on merits in accordance with the scheme of Section 250(6). In our considered view, irrespective of the non-appearance of the assessee before the CIT(A), the CIT(A) ought to have dealt with the issues so raised by the assessee-appellant on merits and by way of speaking order and in accordance with the law. We, therefore, deem it fit and proper to remit the matter to the file of the CIT(A) for adjudication on merits, in the light of the above observation. As the matter is being remitted to the file of the learned CIT(A), we also deem it appropriate to direct the learned CIT(A) to provide the assessee yet another fair and reasonable opportunity of hearing. Ordered, accordingly. As the matter is being remitted to the file of the learned CIT(A) for adjudication on merits, the grievances of the assessee, on merits, do not call for any adjudication at this stage. 3. We see no reasons to take any other view of the matter than the view so taken by the coordinate bench. The matter is therefore remitted to the file of the learned CIT(A) for adjudication merits, in accordance with the law, by way of a speaking order and after giving a reasonable opportunity of hearing to the assessee. As the matter is being remitted to the file of the learned CIT(A) for adjudication on merits, the grievances of the assessee, on merits, do not call for any adjudication at this stage. ITA No.: 1849/Mum/2022 Assessment year: 2017-18 Page 3 of 3 4. In the result, the appeal is allowed in the terms indicated above. Pronounced in the open court today on the 11 th August 2022. Sd/- Sd/- Vikas Awasthy Pramod Kumar (Judicial Member) (Vice President) Mumbai, dated the 11 th day of August 2022. Copies to: (1) The Appellant (2) The respondent (3) CIT (4) CIT(A) (5) DR (6) Guard File By order True Copy Assistant Registrar/Sr.PS Income Tax Appellate Tribunal Mumbai benches, Mumbai