In the absence of cooperation from assessee Ld CIT will be free to adjudicate the appeal on merit basis

IN THE INCOME TAX APPELLATE TRIBUNAL

DELHI BENCH: B: NEW DELHI

BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT

AND

SHRI I.P. BANSAL, JUDICIAL MEMBER

ITA No.648/Del/2012

Assessment Year: 2004-05

Fine Properties Pvt. Ltd.,

Ganpati Apartment,

Basement House,

6, Ali Pur Road,

Civil Lines,

New Delhi.

PAN: AAACF1941J

Vs.

 ITO,

Ward 11 (2),

New Delhi.

(Appellant) (Respondent)

Assessee by: Shri Piyush Kaushik, Advocate

Revenue by: Shri Surender Pal, Sr. DR

ORDER

PER I.P. BANSAL, JUDICIAL MEMBER

This is an appeal filed by the assessee. It is directed against the ex parte order passed by the CIT (A) dated 29th November, 2011 for Assessment Year 2004-05. The grounds of appeal read as under:-

1. On the facts and in the circumstances of the case and in law, the ld. CIT (A) was incorrect and unjustified in dismissing the appeal of the assessee.

2. On the facts and in the circumstances of the case and in law, the ld. CIT (A) was incorrect and unjustified in dismissing the appeal of the assessee without deciding the grounds taken in the appeal memo.

3. On the facts and in the circumstances of the case and in law, the ld. CIT (A) was incorrect and unjustified in dismissing the appeal of the assessee even without considering analyzing and also without passing any speaking order in respect of the various additions made in the assessment order.

4. On the facts and in the circumstances of the case and in law, the assessee was prevented by sufficient cause from appearing in the office on the dates fixed due to the main director, Shri Ajay Gupta suffering from high blood pressure.

5. On the facts and in the circumstances of the case and in law, even if the assessee did not attend to the notice, the CIT (A) was duty bound to decide the appeal on merits by way of confirm, reduce enhance or annul the assessment and this was incorrect in dismissing the appeal.”

2. Referring to the grounds of appeal, it was submitted by the learned AR that the assessee had reasonable and sufficient cause for non-appearance before CIT (A) as Shri Ajay Gupta was suffering from high blood pressure. He submitted that otherwise also learned CIT (A) has not adjudicated the issues raised by the assessee on merits, hence, the matter is required to go back to the file of CIT (A) with a direction to pass the order on merit after giving the assessee a reasonable opportunity of hearing.

3. On the other hand, it was pointed out by the learned DR that the assessee has never cooperated during the course of original assessment as well as during the course of set aside proceedings. He

submitted that the Assessing Officer in pursuance of order of ITAT vide which the assessment proceedings were set aside, had again given the opportunity to the assessee, but the assessee did not avail that opportunity and before CIT (A) also the assessee did not avail the opportunity, therefore, he pleaded that learned CIT (A) has rightly dismissed the appeal filed by the assessee ex parte and his order should be upheld.

4. In the rejoinder, it was submitted by the learned AR that the assessee may be given one opportunity to represent its case. He assured that the assessee will cooperate during the course of set aside proceedings.

5. We have carefully considered the rival submissions in the light of the material placed before us. We have also gone through the order passed by the learned CIT (A). It is observed that learned CIT (A) has dismissed the appeal filed by the assessee in limine without considering the merits of the issues raised in the appeal filed by the assessee. According to law, learned CIT (A) has to adjudicate the appeal filed by the assessee on merits instead of dismissing the same in limine. Finding this lacuna, we have to restore this issue to the file of CIT (A) for adjudication of the appeal of the assessee on merits. Since the proceedings have to be restored to the file of the CIT (A), it will be proper if the direction is given to learned CIT (A) to give a reasonable opportunity of hearing to the assessee. Though the learned AR of the assessee has assured for the cooperation to be extended by the assessee, but, if despite giving such opportunity, the assessee does not cooperate during the course of set aside proceedings, then Ld. CIT (A) will be free to adjudicate the appeal filed by the assessee on merits as per the provisions of law. We direct accordingly.

6. In the result, for statistical purposes the appeal filed by the assessee is treated as allowed.

The order pronounced in the open court on 13.04.2012.

                                                        Sd/-                            Sd/-

                                         [G.D. AGRAWAL]       [I.P. BANSAL]

                                          VICE PRESIDENT   JUDICIAL MEMBER

Dated, 13.04.2012.

dk

Copy forwarded to: -

1. Appellant

2. Respondent

3. CIT

4. CIT (A)

5. DR, ITAT

Deputy Registrar,

ITAT, Delhi Benches

Date of Dictation: 10.04.2012

Date of Presentation of the draft order to the Member: 11.04.2012

Date of return from the Bench after pronouncement &signing

Date of dispatch of the order to the Bench