2022 (5) TMI 604

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..... the Assessee. Appeal is treated as allowed for statistical purpose.
SHRI N. V. VASUDEVAN , VICE PRESIDENT AND MS. PADMAVATHY S , ACCOUNTANT MEMBER For the Appellant : B. S. Balachandran , Advocate For the Respondents : Priyadarshini Mishra , Addl. CIT ( DR ) ORDER Per N. V. Vasudevan , Vice President This is an appeal by the assessee against the order dated 23.11.2016 of CIT(A), Gulbarga, relating to Assessment Year 2008-09. 2. The assessee is a partnership firm engaged in the business of trading in coal. For Assessment Year 2008-09, the assessee filed a return of income declaring a total loss of Rs. 29,95,798/-. An Order of Assessment under section 143(3) dated 29.11.2010 was passed by the AO in which after making several addition .....

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..... l for this Court to hear an appeal and the ITAT could not have dismissed the same solely on account of non-appearance of a party. As a result, as of today, the petitioner company is faced with the situation where it cannot exercise its remedy of filing the statutory appeal under Section 260A of the Act, since order dated 18.10.2016, dismissing the appeal of the appellant, does not adjudicate on the merits of the case. For the assessee to file an appeal under the said provision before this Court, it is required to satisfy that the case involves a substantial question of law. As the order is not touching upon the merits of the case, it deprives this Court to evaluate, if any, substantial question of law under Section 260A of the Act arises on .....

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..... as not afforded the opportunity to argue the case on merits and for this reason it had given the liberty to apply afresh, while dismissing the appeal for non-prosecution. There was thus no cogent reason for the tribunal not to entertain the application for recall. The ITAT has ignored the decision of the Supreme Court in CIT vs. S. Chenniappa Mudaliar (supra) in the correct perspective. 17. For the foregoing reasons, the course adopted by the ITAT at the first instance, by dismissing the appeal for non-prosecution, and then compounding the same by refusing to entertain the application for recall of the order, cannot be sustained. We, therefore have no hesitation in quashing the impugned order. Accordingly, the present petition is allowed. .....

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