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TMI Blog2024 (10) TMI 1473X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive party and even otherwise, CIT (A) has passed an ex parte order - Therefore, without commenting anything on merits, we feel it proper and appropriate to restore the matter back to the file of ld. CIT (A) for afresh decision. Appeal of the assessee is restored back to the file of the ld. CIT(A) for afresh decision. - Hon ble Shri Sandeep Gosain, JM For the Assessee : Shri Devang Gargieya, Advocate For the Revenue : Shri Gautam Singh Chaudhary, JCIT D/R ORDER PER: SANDEEP GOSAIN, J.M. This appeal by the assessee is directed against the order dated 31.07.2024 of ld. CIT (Appeals), Jaipur-4 passed under section 250 of the Income Tax Act, 1961 for the assessment year 2014-15. The grounds raised in the appeal are reproduced as under :- 1. The impugned in the penalty order u/s 271B dated 30.04.2019 are bad in law and on facts of the case, for want of jurisdiction and various other reasons and hence the same kindly be quashed. 2. The ld. CIT (A) erred in law as well as on the facts of the case in passing the order without affording adequate and reasonable opportunity and even without complying with the mandatory statutory requirement of law. The impugned order having been framed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2024 03.07.2024 Requested for adjournment 5. 09.07.2024 16.07.2024 31.07.2024 Requested for adjournment A bare perusal of the above chart shows that the so-called many opportunities granted by the CIT(A) to the appellant, is illusionary and shall reveal an interesting fact that the first notice was given in December 2020 which was duly complied with. However, there was a long silence and after a long gap of almost 22 months the ld. CIT(A) woke up and issued a notice on 03.11.2022 for enablement of window, which did not require any response neither it had such option. Again, thereafter there was complete silence for around 19 months before issuing notices on 11.06.2024, 28.06.2024 09.07.2024 providing a short period of 7 days only. Immediately thereafter on 31.07.2024 he passed the ex-parte order. The question is that when the authority sends the notice after such a long gap it may be difficult for the recipient to check his e-mail/portal every next day throughout the period of 2-3 years. Not only the assessee but also the tax consultant who are also practicing in small towns are not sound with the technical knowledge and infrastructure, it is quite basic for them to have lost sight ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same is reproduced here under for your ready reference: (6) The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision. A bare perusal of above provision makes it clear that the CIT(A) is bound to dispose of the appeal before him on merits. Merely because the assessee didn t turn up, he cannot dismiss the appeal in Limine. The law contained u/s 250(6) 251 do not at all contemplates the CIT(A) passing an appellate order in this manner. There are judicial guidelines to support this contention. 2.2. Supporting Case Laws: 2.2.1. Corporate International Financial Services V ITO ITA No. 2147/Del/2017 held as: Further, it is well-settled that powers of Ld. CIT(A) are coterminus with powers of the Assessing Officer. Useful reference may be made to order of Apex Court decision in CIT vs. Kanpur Coal Syndicate 53 ITR 225 (SC) in which it was held that the first appellate authority, the Ld. CIT(A) in the case before us, has plenary powers in disposing off an appeal; that the scope of her power is co-terminus with that of the ITO, that she can do what the ITO can do an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... --------------- In view of the foregoing, we hold that the Ld. CIT(A) erred in dismissing the appeal of the Assessee in limine for non-prosecution of appeal by assessee. We set aside the impugned order of the Ld. CIT(A) and we direct the Ld. CIT(A) to pass denovo order as per law, in accordance with Sections 250 and 251 of I.T. Act. 2.2.2 CIT vs. Premkumar Arjundas Luthra (HUF) [2016] 240 taxmen 133 it was held that: 8 It is very clear once an appeal is preferred before the CIT(A), then in disposing of the appeal, he is obliged to make such further inquiry that he thinks fit or direct the Assessing Officer to make further inquiry and report the result of the same to him as found in Section 250(4) of the Act. Further Section 250(6) of the Act obliges the CIT(A) to dispose of an appeal in writing after stating the points for determination and then render a decision on each of the points which arise for consideration with reasons in support. Section 251(l)(a) and (b) of the Act provide that while disposing of appeal the CIT(A) would have the power to confirm, reduce, enhance or annul an assessment and/or penalty. Besides Explanation to sub-section (2) of Section 251 of the Act also ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the material placed on record. 3.1 The impugned assessment is not a best judgment assessment as contemplated by law: It is submitted that the AO also did not meet with the requirements of making a best judgment assessment . It is submitted that while making an assessment u/s 144 the AO does not have blind and arbitrary powers to make the assessment, the way he wants. On the contrary, the law enjoins upon him a more onerous duty in such a circumstance in as much as he has to act in the capacity of quasi-judicial authority, who is supposed to take a best judgment, while making a fairest possible assessment of the income of an assessee. 3.2 Fair estimation required- Judicial Guideline: For a better appreciation, a reference may kindly be made to the commentary by the ld. Authors Chaturvedi Pethisaria Vol. 3 Edition V at page 4932, reproduced hereunder verbatim:- Best Judgment assessment how to be made? In making a best judgment assessment the Assessing Officer must not act dishonestly or vindictively or capriciously because he must exercise judgment in the matter. He must make what he honestly believes to be a fair estimate of the proper figure of assessment, and for this purpose he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T (A) be upheld. 5. I have heard the rival contentions and perused the material available on record. At the very outset, I noticed that assessee was ex party before Ld. CIT (A). Before me it has been argued that assessee could not get reasonable opportunity of being heard from the LD. CIT (A). The ld. A/R relied upon his written submissions wherein a chart showing different notices and compliances made have been mentioned. The same is reproduced below :- S.No. Date of issuance of notice Due date of hearing Response date Compliance by assessee Remark 1. 24.12.2020 08.01.2021 09.02.2021 Requested for adjournment Issued during COVID 19 period 2. 03.11.2022 Notice for enablement of Window 3. 11.06.2024 18.06.2024 03.07.2024 Requested for adjournment 4. 28.06.2024 04.07.2024 03.07.2024 Requested for adjournment 5. 09.07.2024 16.07.2024 31.07.2024 Requested for adjournment After hearing both the parties at length and after evaluating the documents placed on record and the orders passed by the revenue authorities, I noticed that the first notice was given to the assessee in the month of December, 2020 which was complied with by the assessee, but thereafter there were long gap of almost 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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