TMI Blog2019 (5) TMI 1184X X X X Extracts X X X X X X X X Extracts X X X X ..... s not in accordance with the mandate of section 250(6) of the Income tax Act. We have also found force in the contention of ld. AR of the assessee that despite receiving the application for adjournment on 30.06.2017, the ld. CIT(A) passed the impugned order by dismissing the appeal in limine. No contrary fact or law is brought to our notice by ld DR for the revenue. The assessment order was passed under section 144 and further first appeal of the assessee was also dismissed in ex-party order, we deem is appropriate to restore all the grounds of the appeal to the file of Assessing Officer to decide all the issues (additions/ disallowance) afresh in accordance with law - ITA No. 3756/Mum/2018 - - - Dated:- 12-3-2019 - Shri Paw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. CIT(A) erred in dismissing the appeal without appreciating the facts that decisions relied upon by him were distinguishable on facts rather one decision i.e. Bharat Petroleum Corporation ITD 359 ITR 371 (Born) supports the contention that appellate authority has to dispose off the appeal on merit and not on the ground of non- attendance or for non prosecution of the case. (v) On facts and circumstances of the case and in law Ld. CIT(A) erred in not admitting additional evidences filed by assessee during appellate 'proceedings by observing that the same are not submitted before AO and not submitted under Rule 46A of the I T Rules. (vi) On facts and circumstances of the case and in law Ld. CIT(A) erred in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unity of hearing and that last date of hearing was fixed on 30.06.2017. On 30.06.2017 no response was received from assessee nor anything in support of grounds of appeal was furnished before the ld. CIT(A). The ld. CIT(A) dismissed the appeal of the assessee in ex-party order in limine without discussing merits of the case. Thus, further aggrieved by the order of ld. CIT(A), the assessee has filed the present appeal before us. 3. We have heard the submission of ld. Authorized Representative (AR) of the assessee and ld. Departmental Representative (DR) for the Revenue and perused the material available on record. We have also deliberated on various case laws relied by the lower authorities. Ground No.1 to 2 relates to passing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee further submits that the assessee be given opportunity to contest the case on merit and he undertake on behalf of assessee to be vigilant for attending the case before the lower authorities. 5. On the other hand, the ld. DR for the revenue supported the order of lower authorities. The ld. DR submits that the Assessing Officer despite offering sufficient and reasonable opportunity as recorded in para-2 of the assessment order, the assessee failed to make the compliances of the notices issued by Assessing Officer. Thus, the Assessing Officer has no option except to make the best judgment assessment on the basis of material available before him. Before the ld. CIT(A), the assessee again defaulted in attending and substantiati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... written on the endorsement of receipt of the said application. We have noted that ld. CIT(A) in the impugned order recorded that the appeal was fixed on 30.06.2017, however, there was no response from assessee nor any material was filed in support of the appeal. The appeal of the assessee was dismissed in limine by referring the decision of Delhi Tribunal in Multiplan India Pvt. Ltd. [138 ITD 320]. The decision of Delhi Tribunal has been overruled by decision of Third Member case of Kolkata Tribunal in Partha Mitra Vs ITO [2016] 75 taxmann.com 118 (Kolkata - Trib.) (TM). Even otherwise the case law discussed in Multiplan India Pvt Ltd was related with the power of Tribunal for disposing the appeal. 7. The procedure in appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roach the Assessing Officer for fixing the date of hearing within 60 days of this order. The assessee is further directed to provide all necessary documentary evidences and the information to the Assessing Officer without any further delay and would not seek adjournment without a valid reason in writing. In the result, ground no. 1 2 of the appeal is allowed. 9. Since we have allowed the ground no. 1 2 of the appeal and restored all the issues to the file of Assessing Officer. Thus, the discussions on other grounds of appeal on various additions have become academic. 10. In the result, appeal of the assessee is allowed for statistical purpose. Order pronounced in the open court on 12/03/2019. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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