PREM CHAND YADAV, Lucknow V. Assistant Commissioner of Income Tax-1, Lucknow - New

ITA 406/LKW/2023

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 6153 (ITAT-LUCKNOW)
• Duration Of Justice: 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-07-2024
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: B
• Next Hearing Date: 30-06-2024
• Assessment Year: 2017-2018
• Appeal Filed On: 19-12-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PREETI SINGH
• Keywords: Set aside
• Section: 68; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH “B”, LUCKNOW BEFORE SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER AND SHRI SUBHASH MALGURIA, JUDICIAL MEMBER ITA No.406/LKW/2023 Assessment Year: 2017-18 Prem Chand Yadav 1/374, Sector 1 Gomti Nagar Extension Gomti Nagar, Lucknow v. The ACIT-1 Lucknow PAN:ABQPY1283Q (Appellant) (Respondent) Appellant by: None Respondent by: Dr Preeti Singh, D.R. Date of hearing: 01 07 2024 Date of pronouncement: 02 07 2024 O R D E R PER SUBHASH MALGURIA, J.M.: This appeal has been filed by the assessee against the order of the ld. CIT(A), National Faceless Appeal Centre (NFAC), Delhi dated 30.12.2022 for the assessment year 2017-18, raising the following grounds:- 1. That the Learned CIT(A) erred in dismissing the appeal of the assessee for non-prosecution and thereby confirming the addition made by the Ld Assessing Officer. That on the facts and in the circumstances of the case the said dismissal of appeal is wrong and bad in law and it is prayed that the order of the Ld. CIT(A) may very kindly be set aside. 1.1. As an alternate and without prejudice to above it is prayed that the Ld. CIT(A) may very kindly be directed to give another opportunity to the assessee and pass the order on merits of the case. ITA No.406/LKW/2023 Page 2 of 5 2. That the Ld. CIT(A) erred in law and facts in upholding the addition of a sum of Rs.60,00,000/- made u/s 68 of The Income Tax Act, 1961 qua source of the impugned amount deposited in cash SBNs during demonetization in assessee's bank accounts treated as unexplained. It is prayed that the disallowance u/s 68 is uncalled for and hence may very kindly be deleted. 3. None has appeared for the Assessee despite issuance of Notice through RPAD, which Notice has not returned unserved. However, finding that the matter can be decided in the absence of the Assessee, we have decided to dispose of the appeal after hearing the ld. D.R. and after perusing the material on record. 4. There is delay in filing of this appeal; and the assessee has filed application for condonation of delay. The ld. D.R. has no objection to the prayer made by the assessee for condonation of delay. Accordingly, we condone the delay and admit this appeal for hearing. 5. The brief facts of the case are that the assessee is an individual and derives income from business. The assessee filed his return of income for the year under consideration declaring a total income of Rs.66,87,140/-. The Assessing Officer completed the assessment under section 143(3) of the Act, making addition of Rs.60,00,000/- on account of unexplained business income under section 68 of the Income Tax Act, 1961 and assessing the total income of the assessee at Rs.1,26,87,140/-. The ld. CIT(A), vide his impugned ex-parte order dated 30.12.2022 dismissed the appeal of the assessee. 6. Aggrieved, the assessee is now in appeal before the Tribunal. The main ground raised by the assessee is that the ld. ITA No.406/LKW/2023 Page 3 of 5 CIT(A) has erred in dismissing the appeal ex-parte qua the assessee, without providing due and adequate opportunity of hearing to the assessee and the ld. CIT(A) may be directed to decide the appeal on merit after providing another opportunity of hearing to the assessee. 7. We have heard the ld. D.R. and perused the material placed on record. We find that the CIT(A), NFAC, Delhi has dismissed the appeal without providing proper opportunity to the assessee. The order so passed by the ld. CIT(A), NFAC is patently non-speaking and has not adjudicated on merits of the addition made by Assessing Officer. Moreover, he has not decided the appeal after discussing in detail, his reasons for agreeing with the assessment order. 8. As per provisions of section 250(6) of the Act, the Commissioner (Appeals) was obliged to dispose of the appeal in writing after stating the points for determination and to then pass an order on each of the points which arose for consideration; and the Commissioner (Appeals) was further obliged to state the reason for his/her decision on each such points which arose for determination. The Commissioner (Appeals) is duty-bound to dispose of the appeal through a speaking order on merits, on all the points which arose for determination in the appellate proceedings, including on all the grounds of appeal. Moreover, the perusal of section 251(1)(a) and (b) and further the perusal of Explanation of section 251(2) shows that the Commissioner (Appeals) is required to apply his/her mind to all the issues which arise from the impugned order before him/her, whether or not these issues have been raised by the assessee before him/her. If the order of the Commissioner (Appeals) on merits is a summary order, it ITA No.406/LKW/2023 Page 4 of 5 amounts to non-application of mind. This non-application of mind is a contravention of statutory role of the Commissioner (Appeals) under section 251(2) of I.T. Act. Also, section 251(1)(a) provides that while disposing of an appeal against assessment order, Commissioner (Appeals) shall have the power to confirm, reduce, enhance or annul the assessment. Similarly, the section 251(1) (b) provides that in disposing of an appeal against an order imposing a penalty, the Commissioner (Appeals) may confirm or cancel such orders or vary it so as to either to enhance or to reduce the penalty. On cumulative consideration of the provisions of section 250(6) read with sections 250(4), 250(5), 251(1)(a), 251(1)(b) and Explanation of section 251(2), it is concluded that the Commissioner (Appeals) is not empowered to dismiss the appeal for non-prosecution of appeal and is obliged to dispose of the appeal on merits. In this view of the matter, another opportunity of hearing requires to be given to the assessee to represent its case fully before the ld. CIT(A). 9. In view of the above, the matter is remitted to the file of the ld. CIT(A), NFAC to be decided afresh on merit, in accordance with law, on affording due and adequate opportunity of hearing to the assessee, preferably within two months from the date of receipt of this order. The assessee, no doubt, shall cooperate in the fresh proceedings before the ld. CIT(A), NFAC. All pleas available under the law shall remain so available to the assessee. 10. In the result, the appeal of the assessee is treated as allowed for statistical purposes. Order pronounced in the open Court on 02/07/2024. Sd/- Sd/- [ANADEE NATH MISSHRA] [SUBHASH MALGURIA] ACCOUNTANT MEMBER JUDICIAL MEMBER ITA No.406/LKW/2023 Page 5 of 5 DATED:02/07/2024 JJ: Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. DR By order Assistant Registrar