Mohd. Naseem Haji, Mau V. Income Tax Officer, Ward - Mau, Mau

MA 2/VNS/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4638 (ITAT-VARANASI)
• Duration Of Justice: 5 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-04-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 22-11-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CIRCUIT BENCH, VARANASI BEFORE SHRI.VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER MA No. 02/VNS/2021 arising out of ITA No. 3/VNS/2020 Assessment Year: 2010-11 Mohd Naseem Haji, Ibrahimpur, Deokali Taran, Azamgarh, U.P. v. The Income Tax Officer Ward- Mau, U.P. PAN:AOPPN2618Q (Appellant) (Respondent) Appellant by: None Respondent by: Shri A.K.Singh, Sr. DR Date of hearing: 25.03.2022 Date of pronouncement: 25.03.2022 O R D E R PER VIJAY PAL RAO, JM None has appeared on behalf of the assessee when this misc. application was called for hearing despite the notices were issued to the assessee. 2. We have gone through the contents of the misc. application of the assessee wherein the only mistake alleged by the assessee is regarding the matter was set aside to the record of the CIT(A) for fresh adjudication on merits instead of Assessing Officer. 3. The learned DR has submitted that there is no apparent mistake in the impugned order of the Tribunal as the Tribunal has set aside the order of the CIT(A) and remanded the matter to the record of the CIT(A) to be decided afresh on merits in accordance with law. Thus, misc. application is without any substance or merits. 4. Having considered the misc. application of the assessee as well as the contentions of the learned DR, we find that the Tribunal vide order dated 22 nd MA No. 02/VNS/2021 arising out Appeal in ITA No.3/VNS/2020 2 September, 2021 in para 4 to 6 has set aside the matter to the record to the CIT(A) as under:- “4. By virtue of the impugned order, the ld. CIT(A) has dismissed the assessee’s appeal for non-prosecution. The ld. CIT(A) has recorded certain dates of hearing in his order, but there is no proof whether notice of hearing was ever served upon the assessee. Such service of notices has, however, been disputed by the assessee. 5. Heard. We find that the CIT(A) has dismissed the appeal without providing proper opportunity to the assessee. Moreover, the ld. CIT(A) has not disposed of the appeal on merit after affording opportunity of hearing to the assessee. As such, another opportunity of hearing requires to be given to the assessee to represent his case fully before the ld. CIT(A). Even otherwise, it is trite [‘S. Velu Palandar Vs. DCIT 83 ITR 683 (Mad.) and ‘Ms. Swati Pawa vs. Dy. CIT, 175 ITD 622 (Del) and incumbent on the ld. CIT(A) to decide an appeal on merit even in the absence of any representation before them. 6. In view of the above, the matter is remitted to the file of the ld. CIT(A) to be decided afresh on merit, in accordance with law, on affording due and adequate opportunity of hearing to the assessee. The assessee, no doubt, shall cooperate in the fresh proceedings before the ld. CIT(A). All pleas available under the law shall remain so available to the assessee. Ordered accordingly.” 5. The Tribunal has taken a decision to set aside the order of the CIT(A) and remit the matter to file of the CIT(A) for fresh adjudication on merits because the appeal of the assessee was dismissed by the CIT(A) for non prosecution. Therefore, the decision of the Tribunal in remitting the matter to the record of the CIT(A) does not suffer any mistake apparent on record. It is a view taken by the Tribunal and not a case of not considering any crucial fact or point while deciding the appeal and passing the impugned order. Therefore, the grievance of the assessee that the matter should have been remitted to the record of the Assessing Officer does not fall in the ambit apparent mistake on record. Further, there is nothing on record to suggest that the Tribunal has pronounced the decision to remit the matter to the record of the Assessing Officer and the decision taken by the Tribunal is the direct consequence of the fact that the CIT(A) has not decided the appeal of the assessee on merits but the same was dismissed for non prosecution. Hence, we do not find any merits or substance in the misc. application, the same is dismissed. MA No. 02/VNS/2021 arising out Appeal in ITA No.3/VNS/2020 3 6. In the result, the misc. application of the assessee is dismissed. Order was pronounced in the open court on conclusion of hearing on 25.03.2022. The written order is signed on the date as given below. Sd/- Sd/- [RAMIT KOCHAR] [VIJAY PAL RAO] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 21/04/2022 Varanasi Sh Copy forwarded to: 1. Appellant-Mohd Naseem Haji 2. Respondent-ITO, Mau 3. CIT(A),Varanasi 4. CIT 5. DR By order Sr. P.S. MA No. 02/VNS/2021 arising out Appeal in ITA No.3/VNS/2020 4 Date Initials Original dictation pad is enclosed at the end of file 1. Draft dictated on: 25.03.2022 Sr. PS/PS 2. Draft placed before author: 25.03.2022 Sr. PS/PS 3. Draft proposed & placed before the second member: .03.2022 JM/AM 4. Draft discussed/approved by Second Member: JM/AM 5. Approved Draft comes to the Sr. PS/PS: .03.2022 Sr. PS/PS 6. Order pronounced on: .03.2022 Sr. PS/PS 7. File sent to the Bench Clerk: .03.2022 8. Date on which file goes to the Head Clerk: Sr. PS/PS 9. Date on which file goes to AR 10. Date of dispatch of Order: