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TMI Blog2025 (3) TMI 1480X X X X Extracts X X X X X X X X Extracts X X X X ..... regards the legal ground is concerned, the Ld. Counsel submitted that the approval for draft assessment order u/s. 153D of the Act from the Addl. CIT, Range-Circle, Raipur was taken and there was difference in the draft assessment order and the final assessment order passed u/s.153A of the Act and that when such final assessment order was passed there was variation in the contents of the said order as compared to the draft assessment order for which no approval was taken from competent authority. 4. In this regard, the Hon'ble Bench directed the Ld. CIT-DR to place the assessment records, however, the Ld. CIT-DR submitted that the assessment records were sent to the Assessing Officer for his comments. That on this present date of hearing, the comments of the Assessing Officer is there and relevant part is extracted for the sake of completeness: "3. In this case, on through examination of records, it is found. that draft assessment order u/s.153A of the I.T Act, 1961 for A.Y 2012-13 to 2019-20 was sent for approval to the Addl. Commissioner of Income Tax, Range Central, Raipur on 27.09.2021 u/s.153D of I.T Act 1961, the same was approved by the Addl. Commissioner of Income Tax, R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o non-compliance by the assessee. The Ld. CIT-DR therefore submitted that there has been no adjudication substantively on the rights and liabilities of the parties herein by the first appellate authority and as a statutory authority there should have been adjudication on merits by the Ld. CIT(Appeals) which was not possible due to non-compliance by the assessee. Therefore, these matters may be remanded back to the file of the Ld. CIT(Appeals) for passing an order in terms with Section 250(4) and (6) of the Act. 7. We have considered the submissions of the parties herein and analyzed the facts and circumstances involved in all the captioned appeals. After careful perusal of the documents on record, we find that the assessee had assailed the legal ground as aforestated, however, the fact of the matter is that on perusal of the respective orders of the Ld. CIT(Appeals) for all the years before us, it is also evident from Para 3 that there has been no compliance by the assessee before the said authority and as such, an ex-parte order was passed for the concerned years in appeal. Admittedly, as per record, sufficient opportunities had been provided to the assesse, however, there was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fforded proper opportunity of being heard and the matter was dismissed ex-parte by the Ld. CIT(Appeals)/NFAC which amounted to violation of principles of natural justice, and instead ITAT decided the case on merits, in such circumstances, the Hon'ble High Court of Bombay held that passing of an order on merits by the ITAT even when the impugned order was passed ex-parte amounts to violation of principles of natural justice and accordingly, the said matter was remanded to ITAT for passing a fresh order in accordance with law after hearing the parties. The legal principle as enshrined in the present judgment is crystal clear that the principles of natural justice i.e. the right to be heard is to be provided and accordingly, the matter had to be substantially adjudicated by the appellate authority. Therefore, if the impugned order of the Ld. CIT(Appeals)/NFAC is an ex-parte order, the only recourse in conformity with the aforesaid judicial pronouncement is to remand the matter back to the file of the Ld. CIT(Appeals)/NFAC for fresh adjudication in terms with the principles of natural justice providing one final opportunity to the assessee. 10. In the aforesaid case, the Hon'ble High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m irrespective of whether the assessee had raised such legal issue at the sub-ordinate level or not, however, it always depends on facts and circumstances of each case whether the Tribunal would decide the legal ground or in a case where the question is of natural justice and ex-parte order by the Ld. CIT(Appeals) the Tribunal would remand it back to Ld.CIT(Appeals) providing final opportunity to a bonafide assessee. The Tribunal as the highest fact finding authority must be certain enough that the impugned order before it has been passed on merits and is a speaking order where the assessee has also complied during the process of litigation. In case, where the order of the Ld. CIT(Appeals) itself is ex-parte and some legal ground is raised and if the Tribunal decides such legal ground where in fact principles of natural justice is left unanswered due to the fact that the impugned order before the Tribunal is ex-parte and there was no compliance by the assessee in such scenario the Tribunal would also be usurping the power of the Ld. CIT(Appeals) which is also a statutory authority as per the Act. This is due to the reason that as per framework of the Act, Ld.CIT(Appeals) is the fir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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