Balbir Sharma, Delhi vs Assessee

This appeal, preferred by the assessee, is directed against the order dated 18-12-2012, passed by the CIT(Appeals)-XXX, New Delhi, relating to A.Y. 2003-04.

2. Brief facts are that the assessee in the relevant assessment year was in receipt of salary income from Ministry of Sports & Youth Affairs and was also deriving some agricultural income. He had filed his return of income declaring income of Rs. 1,71,000/-. The AO observed that intimation dated 26-3-2009 regarding tax evasion being made by the assessee, was received from the office of the DIT(Inv.), New Delhi relating to search conducted by 2

CBI on the assessee on 10-7-2006 and unearthed receipt of huge unaccounted money. The assessdee's case was, accordingly, reopened and addition u/s 68 of Rs. 25 lacs was made.

3. The assessee preferred appeal before the ld. CIT(A). However, ld. CIT(A) dismissed the appeal for non-prosecution as assessee had sought adjournments on various dates as mentioned in the ld. CIT(A)'s order. The assessee has, inter alia, taken following grounds:

"2. The learned CIT(A) has erred in law and on facts in stating that the appellant is not interested in availing the opportunity of being heard.

3. The learned CIT(A) has erred in law and on facts in making averment that the appellant is lazy and non-cooperative and that the AO should take cohesive action in collecting taxes from such lazy appellant."

4. We have heard rival contentions and perused the relevant material available on record. The ld. CIT(A) vide his impugned order has dismissed the appeal filed by the assessee, in limine, for want of prosecution qua the assessee, by observing as under:

3. I have considered the grounds of appeal taken by the appellant and also considering the non cooperation on the part of the appellant. It seems that the assessee is not interested in deciding his appeal. The appeal filed by the appellant is liable to be dismissed for non-prosecution and also on merits as the appellant has not filed any documentary evidence regarding his claim in the appeals. The appeals of the assessee are dismissed for non prosecution and also non availability of any submissions along with evidences, in support of grounds taken by him. I find support from the decision in the 3

following cases:-

1. CIT v . Focus Estates P .Ltd. v. 286 ITR 410 (2006) (Delhi High Court)-Held that Rule 25 of the Appellate Tribunal Rules,1963, empowers the Tribunal to dispose of an appeal on merits after hearing the appellant, if on the date on which the matter is called for hearing, the respondent does not appear in person or through an authorized representative

2. Annapuma Agencies vs. Dy.CIT, Circle-l l , Aayakar Bhavan Ahmedabad- (20II-TIOL-645-ITAT-AHM).

"Held that whether failure to attend proceedings before AO attracts penalty for non-appearance. The assessee failed to comply with the statutory notices. Whatever explanation was given before the Id.CIT(A) was not substantiated through any material on record. We, therefore, do not find any justification to interfere with the order of the id.CIT(A). -We confirm the same and dismiss the appeal of the assessee."

The appeal filed by the assessee is dismissed for non prosecution and also non availability of any submissions along with evidences in support of grounds taken by him"

5. In our considered opinion the order passed by the learned CIT(Appeals) cannot be accepted in the eye of law. The ld. CIT(A) has dismissed assessee's appeal in limine for want of prosecution, without touching the issues raised before him in the grounds of appeal. If the learned CIT(A) wanted to dispose of the appeal ex parte, qua the assessee, being first appellate authority, he was duty bound to dispose of the issues raised before him on merits. In any view of the matter, the order of the learned CIT(A) is set aside and the matter is restored back to the file of ld. CIT(A) to him with the direction to pass a reasoned order, on the 4

grounds of appeal raised before him, in accordance with law, of course, after affording reasonable opportunity of being heard to the assessee. We order accordingly.

6. In the result, assessee's appeal stands allowed for statistical purposes only.

Order pronounced in open court on 20-02-2015.

Sd/- Sd/- (H.S. SIDHU ) ( S.V. MEHROTRA ) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 20-02-2015. MP: Copy to : 1. Assessee 2. AO 3. CIT 4. CIT(A) 5. DR