Rajesh Yadava, Gorakhpur V. ITO, Ward - 2(3), Gorakhpur

ITA 41/VNS/2020

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 4374 (ITAT-VARANASI)
• Duration Of Justice: 2 year(s) 2 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-04-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 09-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S.N. MANI
• Keywords: Set aside
• Section: 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CIRCUIT ‘SMC’ BENCH, VARANASI BEFORE SHRI.VIJAY PAL RAO, JUDICIAL MEMBER ITA No.41/VNS/2020 Assessment Year: 2010-11 Rajesh Yadav, Village-Gathuakhor, P.O. Madanpura, Gorakhpur, U.P. PAN-ACBPY2330A v. Income Tax Officer, Ward-2(3), Gorakhpur (Appellant) (Respondent) Appellant by: Sh. S.N. Mani, Advocate Respondent by: Sh. A.K. Singh, Sr. DR Date of hearing: 19.04.2022 Date of pronouncement: 19.04.2022 O R D E R SHRI VIJAY PAL RAO, JUDICIAL MEMBER: This appeal by the assessee is directed against the order dated 9.12.2019 of CIT(A), Gorakhpur for the assessment year 2010-11. The assessee has raised the following grounds:- 1. That the learned CIT(A) has erred in law and facts in passing the appellate order. 2. That the ex parte appellate order has been passed without any default on the part of the assessee. 3. That on the date fixed for hearing i.e. 14.08.2019 and 10.10.2019 the learned CIT(A) himself was not present in his office. And no notice has been served on the assessee for 11.09.2019. 4. That the learned CIT(A) has not justified in confirming the assessment order. 5. That the learned CIT(A) has not justified in confirming the addition of Rs. 1177000/- deposited in saving bank account. 6. That the proceeding u/s 147/148 has been initiated for verification of purchase of mutual fund of Rs. 200000/- where as the assessment has been completed after adding Rs. 1177000/- deposited in bank account. 7. That the learned ITO as well as CIT(A) has not justified in going beyond the reasons recorded for reopening the case. 8. That no proceeding u/s 147/148 has been initiated for verification of deposit in bank account therefore addition on this score is unjustified. 9. That the whole appellate order is illegal, ultra virus and against the provisions of law.” ITA No.41/VNS/2020 Rajesh Yadav 2 2. I have gone through the impugned order of the CIT(A) and also considered the submissions of both the parties. At the outset, it is noted that the CIT(A) has dismissed the appeal of the assessee for non prosecution. The relevant part of the order of the CIT(A) in para 5 is as under:- “5. The aforesaid non-compliance on part of appellant reveals beyond doubt that appellant has nothing to say in the matter of this appeal. It can be concluded that appellant is not interested in prosecution of the present appeal and same is liable to be dismissed on this ground itself. The law assists those who are vigilant and not those who sleep over their rights. This principle is embodied in well known dictum “VIGILANTIBUS, NON DORMENTIBUS, JURA SUBVENIUNT”. In view of the above mentioned facts and by placing reliance on decision of Hon'ble ITAT, Delhi Bench in case of CIT vs. Multiplan India Ltd. reported in 38 ITD 320 and decision of Hon'ble M.P. High Court in case of Estate of Late TukojiRaoHolkar vs. CWT (1997) reported in 223 ITR 480 the present appeal is liable to be dismissed.” 3. Thus, the CIT(A) dismissed the appeal in limine without adjudication of the issues on merits, therefore, the impugned order of the CIT(A) is not inconformity with the provisions of section 250 of the Income Tax Act, 1961 whereby the CIT(A) ought to have decided the appeal on merits by a speaking order. Accordingly, in the facts and circumstances of the case and in the interest of justice, the impugned order of the CIT(A) is set aside and the matter is remanded to the record of the CIT(A) for deciding the same afresh on merits after giving an opportunity of hearing to the assessee. 4. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court after a conclusion of hearing on 19.04.2022. Sd/- [VIJAY PAL RAO] JUDICIAL MEMBER DATED: 19/04/2022 Varanasi ITA No.41/VNS/2020 Rajesh Yadav 3 Sh Copy forwarded to: 1. Appellant- 2. Respondent- 3. CIT(A),Varanasi 4. CIT 5. DR By order Sr. P.S.