Chhaganbhai H. Patel,, Baroda vs Assessee

IN THE INCOME TAX APPELLATE TRIBUNAL " D " BENCH, AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL CHATURVEDI, A.M.)

I.T. A. No. 2709/AHD/2013 (Assessment Year: 2007-08)

Shri Chhaganbhai H. Patel 6, V/S I.T.O, Ward-2(4), Baroda Alka Society, Opp. Akota Water Tank, Akota, Baroda 390 020

(Appellant) (Respondent)

PAN: ACPPP 3009D

Appellant by : Smt. Urvashi Shodhan, A.R. Respondent by : Shri B.L. Yadav, Sr.D.R.

(आदेश )/ORDER

Date of hearing : 24-12-2014 Date of Pronouncement : 09-01-2015

PER SHRI ANIL CHATURVEDI,A.M.

1. This appeal is filed by the Assessee against the order of CIT(A)-II, Baroda dated 30.09.2013 for A.Y. 2007-08.

2. The relevant facts as culled out from the material on record are as under.

3. In the present case, the assessment was framed u/s. 143(3) r.w.s. 148 vide order dated 23.01.2013 and the total income was determined at Rs. 33,13,060/-. Aggrieved by the order of A.O, Assessee carried the matter before CIT(A) who vide order dated 30.09.2013 dismissed the appeal of the Assessee in limine by 2 ITA No 2709/AHD/2013 . A.Y. 2007-08 following the order of ITAT Delhi in the case of CIT vs. Multiplan India Pvt. Ltd. 38 ITD 320 (Del.)

4. Aggrieved by the aforesaid order of CIT(A), Assessee is now in appeal before us and has raised the following grounds:-

1. Ld. CIT (A) erred in law and on facts in dismissing appeal of the assessee for want of prosecution applying ratio of the Delhi ITAT Bench decision of CIT vs Multiplan India Pvt. Ltd. 38 ITD 320 in absence of attendance of the appellant. This action of Id. CIT (A) violating principles of Natural Justice deserves to be quashed. It be so held now.

2. Ld. CIT (A) erred in law and on facts in dismissing the appeal for want of prosecution without granting opportunity of hearing to the appellant but also refraining from deciding the appeal on merits ignoring submissions, judicial decisions & evidences on record. It is respectfully submitted that impugned order of ld. CIT (A) be set aside directing to grant opportunity to the appellant to substantiate the facts of the case. It be so held now.

5. Before us, the learned counsel for the assessee submitted that the CIT(A) has passed an ex parte order against the assessee in a summary manner without deciding the issues before him on merits and has dismissed the appeal of the assessee. He submitted that the CIT(A) has no power to decide the appeal before him without going into the merits thereof and for which he placed reliance on the decision of ITAT, Ahmedabad Bench in Gujarat Themis Biosyn Ltd. Vs. JCIT, 74 ITD 339 (AMD). She therefore submitted that the order of ld. CIT(A) be set aside. The learned DR on the other hand supported the order of the AO and CIT(A).

6. We have considered rival submissions and have perused the orders of the AO and the CIT(A). We find that the assessee had not appeared before ld. CIT(A) on 2 dates of hearing fixed by the CIT(A) and therefore CIT(A) concluded that the Assessee was not interested in perusing the appeal and accordingly dismissed 3 ITA No 2709/AHD/2013 . A.Y. 2007-08 the appeal of Assessee. However, the law on this issue is well settled that the CIT(A) has no jurisdiction to dismiss the appeal of the assessee without going into merits of the issues before him. Even in the ex parte order, the CIT(A) should have decided the grounds of the appeal of the assessee on merits thereof. In these facts of the case, we restore this order of the CIT(A) to his file to pass a de novo appellate order in accordance with law, on merits, after allowing reasonable opportunity of hearing to both the parties. The assessee is directed to co-operate with the department and attend on the date of hearing fixed before the CIT(A). We direct accordingly.

7. In the result, the assessee's appeal is allowed for statistical purposes.

Order pronounced in Open Court on 09- 01 - 2015.

Sd/- Sd/- (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER Ahmedabad. TRUE COPY Rajesh

Copy of the Order forwarded to:- 1. The Appellant. 2. The Respondent. 3. The CIT (Appeals) - 4. The CIT concerned. 5. The DR., ITAT, Ahmedabad. 6. Guard File. By ORDER

Deputy/Asstt.Registrar ITAT,Ahmedabad