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TMI Blog2025 (5) TMI 1565X X X X Extracts X X X X X X X X Extracts X X X X ..... erred in dismissing the appeal without providing further opportunity. 3. The learned Commissioner of Income Tax (Appeals)-11, Hyderabad, failed to appreciate that the appellant had filed all the necessary details during the course of assessment proceedings including copies of ledger account as per books of account, copy of bill, other supporting documents and contract agreement with regard to sub-contract expenses amount of Rs.1,52,86,000/- paid to Radha Swami Infracon & Engineers Limited, Jamshedpur e entire addition of Rs. 1,52,86,000/- is to be deleted. 4. The learned Commissioner of Income Tax (Appeals)-11, Hyderabad and Assessing Officer, has erred in considering sub-contract expenses amount of Rs.1,52,86,000/- paid to Radha Swami Infracon & Engineers Limited, Jamshedpur. The sub-contract expenses amount of Rs.1,52,86,000/- is included in service tax amount of Rs.17,58,566/-, which was not claimed as expenditure. 5. The learned Commissioner of Income Tax (Appeals)-11, Hyderabad and Assessing Officer, ought to have considered appellant submissions submitted during the course of assessment proceedings and considered the subcontract expenses of Rs.1,35,27,434/- paid to Radh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for deduction of the delayed deposit of the employee share of contribution towards ESI/PF amounting to Rs.1,06,276/-. The A.O. vide his order u/s 147 of the Act dt.26.09.2023 after making the aforesaid additions/disallowances determined the income of the assessee company at Rs. 4,41,31,926/-. 5. Aggrieved the assessee company carried the matter in appeal before the CIT(A). As the assessee company despite having been afforded sufficient opportunities had on five occasions i.e., vide notices dated 12.02.2024, 22.05.2024, 25.06.2024, 27.09.2024 and 03.12.2024 failed to make any compliance, while for on the remaining two occasions i.e., on 10.07.2024 and 21.09.2024 had only sought for some further time so that the necessary information may be collated, which, however were never filed, therefore, the CIT(A) holding a firm conviction that the assessee company was not interested in prosecuting the appeal, dismissed the same on the said count itself. For the sake of clarity, the observations of the CIT(A) are culled out as under : 7. Decision: The appellant filed its return of income on 13.10.2018 admitting total income of Rs.2,82,61,250/-. The A.O. had come into possession of informati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6,276/- has to be disallowed. Aggrieved by the above two additions made by the AO, the appellant filed the present appeal. 7.1 The appellant raised 10 grounds of appeal. 7.2 At this juncture, it is relevant to mention that during the appellate proceedings several opportunities were provided by the department through the e-mail address given by the appellant in Form 35. However, the appellant failed to produce any explanation in support of appellant's grounds of appeal. The following table illustrates the number of opportunities afforded to the appellant :- SI. No. Date of Notice Due Date Compliance of Remarks 1. 12.02.2024 19.02.2024 No compliance 2. 22.05.2024 03.06.2024 No compliance 3. 25.06.2024 05.07.2024 No compliance 4. 10.07.2024 Appellant responded vide its letter dated 10.07.2024 stating that ground wise information to be submitted is under compilation and sought adjustment. 4. 21.09.2024 IC Appellant responded through the portal stating that ground wise information to be submitted is under compilation sought adjustment. 5. 27.09.2024 15.10.2024 No compliance 6. 03.12.2024 13.12.2024 No compliance 7.3 Though the appellant sought a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smissal of the said appeal vide order dated 26.09.2023 on merits although the appellants were not represented inasmuch as there was no counsel who appeared for the appellants and the junior counsel for the appellants submitted that the senior counsel engaged in the matter, was not available as his cousin had passed away. Therefore, on account of a bereavement in the family of the arguing counsel there was no representation on behalf of the appellants before the High Court. Learned senior counsel appearing for the appellants submitted that the High Court could have dismissed the appeal for nonprosecution in terms of the order XLI Rule 17 CPC and particularly the Explanation thereto instead of dismissing the appeal on merits by stating that no substantial question of law was made out. Therefore, the learned senior counsel submitted that the impugned judgment may be set aside and the matter may be remanded to the High Court for consideration on the merits of the appeal. Per contra, learned counsel appearing for the respondent supported the impugned judgment and contended that the appellants consistently failed to appear before the High Court and therefore, the High Court had no op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Hon'ble Apex Court had held that if the assessee does not appear when the appeal was called for hearing, then it can only be dismissed for non-prosecution and not on merits. 7. The assessee company being aggrieved with the order of CIT(A), has carried the matter in appeal before us. 8. Shri A.V. Raghuram Advocate, learned Authorized Representative (for short "ld.AR") for the assessee company, at the threshold of hearing of the appeal, submitted that the CIT(A) had grossly erred in law and on facts of the case in dismissing the assessee's appeal for want of prosecution i.e., without adverting to and adjudicating the specific issues based on which the impugned order was assailed before him. The ld.AR submitted that the matter, in all fairness, be restored to the file of CIT(A) with a direction to dispose of the appeal vide a speaking order. The ld.AR to fortify his aforesaid claim has drawn our attention to the order of the ITAT, Hyderabad Tribunal in the case of Uttam Kumar Challa Vs. Income Tax Officer, Ward-6(1), Hyderabad in ITA No.795/Hyd/2024, dated 17.10.2024 9. We have heard the learned Authorized Representatives of both parties, perused the orders of the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a "Court", therefore, we are of a firm conviction that the same cannot be applied qua the proceedings before the CIT(A) which is a quasi-judicial authority. Rather, we find that the Hon'ble Supreme Court in the case of CIT, Madras Vs. S. Chennappa Mudaliar 1969 SCC (1) 591, while interpreting Section 33(4) of the Income Tax Act, 1922, had held, that the appellate tribunal is bound to give a proper decision both on the question of fact as well as law, and that can only be done if the appeal is disposed off on merits and not dismissed owing to the absence of the appellant. 12. Apart from that, our aforesaid view is fortified by the judgment of the Hon'ble High Court of Bombay in the case of CIT Vs. Premkumar Arjundas Luthra (HUF) (2017) 297 CTR 614 (Bom). In the aforementioned case the Hon'ble High Court had observed as under: "8. From the aforesaid provisions, 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 AO to make further inquiry and report the result of the same to him as found in Sec. 250 of the Act. Further, Sec. 250(6) of the Act oblige ..... X X X X Extracts X X X X X X X X Extracts X X X X
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