SHRI ABDUL HAMID MALIK , ANANTNAG V. DEPUTY COMMISSIONER OF INCOME TAX CIRCLE-3, SRINAGAR

ITA 236/ASR/2022

AI Insights

The case involves an appeal by Abdul Hamid Malik against the ex-parte orders of the CIT(A) and the Assessing Officer for the Assessment Year 2017-18. The appeal was initially heard by the CIT(A) who confirmed the additions made by the Assessing Officer due to the absence of any response from the appellant. The Tribunal noted the violation of natural justice as both lower authorities had passed their orders ex-parte without proper hearing of the appellant. The Tribunal referenced the case CIT v. Premkumar Arjundas Luthra (HUF) to emphasize the obligation of the CIT(A) to dispose of the appeal on merits, regardless of the appellant's non-prosecution. Consequently, the Tribunal remanded the case back to the Assessing Officer for a de novo assessment.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 114375 (ITAT-AMRITSAR)
• Duration Of Justice: 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 12-03-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 30-11-2022
• Other Referred Cases: CIT v. Premkumar Arjundas Luthra (HUF) [2016] 69 taxmann.com 407 (Bombay)
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 144; 251; 246A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR (VIRTUAL COURT) BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER I.T. A. No. 236/Asr/2022 Assessment Year: 2017-18 Abdul Hamid Malik, Reshi Bazar, Lal Chowk Jamia Masjit, Anantnag (J&K) 192101 [PAN: BTDPM 5985P] (Appellant) V. DCIT/ACIT, Circle-3, Srinagar (Respondent) Appellant by : None Respondent by : Sh. Prashant Singh, Sr. DR Date of Hearing : 13.03.2023 Date of Pronouncement : 17.03.2023 ORDER Per Dr. M. L. Meena, AM: The present appeal has been filed by the assessee against the ex- parte order of the Ld. CIT(A) National Faceless Appeal Centre (NFAC), Delhi dated 30.07.2022 arising out of an ex-parte assessment order passed by the Assessing Officer in respect of Assessment Year 2017-18. ITA No. 236/Asr/2022 Abdul Hamid Malik v. DCIT 2 2. The ld. counsel has filed an adjournment application dated 10.03.2023 which reads as under: “The above named case is fixed for hearing before the Hon’ble Bench on 13.03.2023 in connection with Appellate proceedings for the AY 2017-18. In this connection, it is submitted that counsel of the assessee is engaged with some other professional work. Therefore, it is prayed that case may please be adjourned & re-fixed convenient to Hon’ble Bench.” \ 3. It is evident from the adjournment application that the appellant’s counsel has not mentioned any concrete reason or material cause for seeking adjournment of the appeal fixed for today. The counsel has merely mentioned that he is engaged in some other professional work, that does not constitute valid reasons for seeking adjournment. Accordingly, the adjournment application filed by the counsel on behalf of the assessee is rejected. 4. In view of ex-parte order passed by both the lower authorities, the appeal is taken up for hearing with the presentation of the DR for the department. 5. It is settled principle of law that where the Assessing Officer and the ld. CIT(A) has passed the orders ex-parte qua the assessee is against the ITA No. 236/Asr/2022 Abdul Hamid Malik v. DCIT 3 principles of natural justice. In the instant case, the ld. CIT(A) has merely mentioned in para 5.4 of the impugned order that even during appellate proceedings, there was no response by the appellant and that the appellant has nothing to say in support of grounds raised. Accordingly, he agreed with the finding of the Assessing Officer and confirmed the addition made by the AO. 6. The ld. DR although stand by the order of the lower authorities, however, he has agreed in principle that there has been violation of the principles of natural justice. 7. Considering the facts of the case that the ex-parte order passed by the AO u/s 144 of the Act and the impugned ex-parte order passed by the ld. CIT(A) are held to be against the principles of natural justice. In our view, the assessee should be given one more opportunity to present his case on merits before the Assessing Officer in rebuttal to the additions made in arbitrary manner as agitated by the appellant, in the grounds of appeal. 8. The Hon’ble Bombay High Court in the case CIT v. Premkumar Arjundas Luthra (HUF) [2016] 69 taxmann.com 407 (Bombay) raised para 8 which is reproduced as under: ITA No. 236/Asr/2022 Abdul Hamid Malik v. DCIT 4 “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.” 9. In the backdrop of the aforesaid discussion, we consider it deem fit to remand back the matter to the file of the AO to pass the assessment order de novo after granting adequate opportunity of being heard to the appellant assessee. The AO is also directed to take into consideration, the material ITA No. 236/Asr/2022 Abdul Hamid Malik v. DCIT 5 evidence available on the record and to be filed in the fresh assessment proceedings. 10. Accordingly, the order of the ld. CIT(A) is set aside and the matter is remanded back to the file of the Assessing Officer to pass a speaking order on merits. 11. In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 17.03.2023 Sd/- Sd/- (Anikesh Banerjee) (Dr. M. L. Meena) Judicial Member Accountant Member *GP/Sr./P.S.* Copy of the order forwarded to: (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T. True Copy By Order