M/S. CONCRETE DEVELOPERS, NAGPUR V. ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1(3), NAGPUR

ITA 38/NAG/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 3035 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 25-03-2024
• Assessment Year: 2016-2017
• Appeal Filed On: 05-02-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KC KANOJIYA LD.
• Section: 132; 143(3); 153A; 250; 40a(ia)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR ITAT-Nagpur Page 1 of 4 (Through Virtual hearing from ITAT, Pune) BEFORE HON’BLE SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI G. D. PADMAHSHALI, ACCOUNTANT MEMBER ITA No. : 034 to 039/NAG/2023 Assessment Year : 2010-11 to 2012-13 & 2015-16 to 2017-18 M/s Concrete Developers 151/152, Anjali Apartment, Gandhi Nagar, Nagpur-440010 PAN: AAAFC6294L . . . . . . . अपीलार्थी / Appellant बनाम / V/s Asstt. Commissioner of Income Tax Central Circle-1(3), Nagpur. . . . . . . . प्रत्यर्थी / Respondent द्वारा / Appearances Assessee by : Mr Kapil Hirani [‘Ld. AR’] Revenue by : Mr KC Kanojiya [‘Ld. DR’] स ु नवाई की तारीख / Date of conclusive Hearing : 26/03/2024 घोषणा की तारीख / Date of Pronouncement : 12/04/2024 आदेश / ORDER PER G. D. PADMAHSHALI, AM; By this present bunch of six appeals instituted u/s 253(1)(a) of the Income-tax Act, 1961 [‘the Act’ hereinafter] the assessee challenges the respective appellate orders of Commissioner of Income Tax Appeals-3, Nagpur [‘CIT(A)’ hereinafter] passed u/s 250 of the Act dismissing its appeals assailed against respective assessment orders passed u/s 143(3) r.w.s. 153A/143(3) of the Act by the respondent for various assessment years [‘AY’ hereinafter]. 2. Since the facts and solitary issue involved in these six appeals are identical, on the request of rival parties, and for the sake of brevity these appeals are heard together for a common and consolidated order. M/s Concrete Developers Vs ACIT ITA No.034 to 039/NAG/2023 ITAT-Nagpur Page 2 of 4 3. Briefly stated common facts of this bunch of cases are; 3.1 The assessee a partnership firm whereupon a search action u/s 132 of the Act was carried out, wherein certain incrementing documents were seized pursuant to which proceeding u/s 153A of the Act were initiated. Considering the returns of income filed by the assessee, the Ld. respondent for AY 2010-11 to 2015-16 reassessed the total income u/s 143(3) r.w.s. 153A of the Act by making additions towards unexplained income/expenditure alongwith income disclosed during the course of search. While framing assessment u/s 143(3) of the Act similar additions were also made in AY 2016-17, whereas a solitary disallowance u/s 40a(ia) of the Act was made in AY 2017-18. 3.2 Aggrieved assessee carried these matters in separate appeals before first appellate authority u/s 246A(1)(a) of the Act. While dealing with assessee’s appeals the Ld. CIT(A) provided as much as five to eight opportunities commencing from 04/06/2018 to 01/10/2021 however, the assessee did neither comply therewith nor attend one. In the event, the Ld. CIT(A) dismissed these appeals ex-parte for non-prosecution by placing reliance on ‘CIT Vs M/s Multiplan India Pvt. Ltd.’ [1991, 38 ITD 320] and Hon’ble Delhi High Court decision in ‘CIT Vs Gold Leaf Capital Corporation Ltd.’ [ITA No. 798/2009]. 3.3 Aggrieved by the aforestated ex-parte adjudication of first appellate forum, the appellant assessee firm set-up these appeals alleging the violation of provisions of section 250(6) of the Act. M/s Concrete Developers Vs ACIT ITA No.034 to 039/NAG/2023 ITAT-Nagpur Page 3 of 4 4. We have heard rival contentions; and subject to the provisions of rule 18 of ITAT-Rules 1963 perused the material placed on records. At the outset in this bunch of appeals we note that, in view of the restriction placed by clause (a) of section 251(1) of the Act the Ld. CIT(A) proceeded to adjudicate the appeals ex-parte owning to non-prosecution by the assessee and without touching the merits came to dismiss the assessee’s appeals in limine by placing reliance on ‘M/s Multiplan India Pvt. Ltd.’ & Gold Leaf Capital Corporation Ltd (supra) which is no longer a good law at present. 5. Dispensing reproduction of provision in verbatim, we voice here that, a plain reading of section 250 of the Act reveals that, even in case of ex-parte proceedings it is incumbent upon the Ld. CIT(A); (i) to make necessary enquiries (ii) to deal with each issue under challenge on merits and (iii) to decide the grievance under appeal by a well speaking order by stating therein (a) point of his determination, (b) decision arrived thereon and (c) clear reasons therefore. A conjoint reading of s/s (4) r.w.s/s (6) of section 250 of the Act further unveils that the Ld. CIT(A) while exercising his jurisdiction u/s 251(1)(a) of the Act is in no case empowered to dismiss an appeal without dealing each issue under challenge on merits. 6. The Hon’ble Jurisdictional Bombay High Court in CIT Vs Premkumar Arjunda’ [2016, 240 Taxman 133 (Bom)] has categorically held that, the Ld. CIT(A) is not empowered to dismiss an appeal in limine for non-prosecution without dealing merits thereof. We find the similar proposition in catena of M/s Concrete Developers Vs ACIT ITA No.034 to 039/NAG/2023 ITAT-Nagpur Page 4 of 4 juridical precedents wherein their Hon’ble lordship have conclusively settled the issue holding that, the authorities exercising appellate jurisdictions are duty to bound to deal with the merits of the case even in ex-parte proceedings and conversely are not empowered to dismiss the appeal in limine for non- prosecution viz; ‘CIT Vs S Chenniappa Mudaliar’ [1969, 74 ITR 41 (SC)], ‘Dolphin Metal India Ltd Vs ITO’ [2021, 431 ITR 666 (Guj)], ‘Government Telecommunication Employees Cooperative Society Ltd. Vs ITO’ [2019, 111 taxmann.com 28 (Mad)], ‘Rajendra Prasad Borah Vs ITAT’ [2008, 302 ITR 243 (Gau)] and ‘Tribhuwan Kumar Vs CIT’ [2007, 294 ITR 401 (Raj)]. 7. In view of the above discussion and respectfully following former binding judicial precedents, without commenting on merits of the case, we set- aside the impugned ex-parte orders and remit these matters back to the file of Ld. CIT(A) for de-nova adjudication in accordance with law with a direction to accord not more than two effective opportunities in each case and pass a speaking order in terms of section 250(6) of the Act. 8. In result, these six appeals are allowed for statistical purposes in above terms. In terms of rule 34 of ITAT Rules, this order is pronounced in the open court on this Friday, 12 th day of April, 2024. -S/d- -S/d- S. S. GODARA G. D. PADMAHSHALI JUDICIAL MEMBER ACCOUNTANT MEMBER प ु णे / PUNE ; दिना ां क / Dated : 12 th day of April, 2024. आदेशकीप्रतितितिअग्रेतिि / Copy of the Order forwarded to : 1. The Appellant. 2. The Respondent. 3. The Pr.CIT Concerned. 4. The CIT(A) Concerned. 5. DR, ITAT, Nagpur Bench, Nagpur 6.गार्डफ़ाइल / Guard File. आिेशान ु सार / By Order वररष्ठ दनजी सदिव / Sr. Private Secretary आयकर अपीलीय न्यायादिकरण, प ु णे / ITAT, Pune.