Order passed on merits without a speaking order cannot be sustained

IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH: KOLKATA

[Before Shri Pramod Kumar, AM & Shri Mahavir Singh, JM]

I.T.A No. 768/Kol/2012

Assessment Year: 2007-08

Dynamic Process Pvt. Ltd.

(PAN: AACCD0599C)

(Appellant)

Vs.

Assistant Commissioner of Income-tax,

Circle-1, Hooghly

 (Respondent)

Date of hearing: 11.09.2012

Date of pronouncement: 11.09.2012

For the Appellant: Shri A. K. Tibrewal

For the Respondent: Shri P. K. Chakraborty

ORDER

Per Bench:

This appeal by assessee is arising out of order of CIT(A)-XXXVI, Kolkata in Appeal No. 985/CIT(A)-XXXVI/Kol/ACIT Cir-1/Hgly/09-10 dated 09.02.2012. Assessment was framed by ACIT, Circle-1, Hooghly, u/s. 143(3) of the Income-tax Act, 1961 (hereinafter referred to as the “Act”) for AY 2007-08 vide his order dated 31.12.2009.

2. At the outset it is noticed that the first issue in this appeal of assessee is against the order of CIT(A) dismissing the appeal in limini without consideration of the subject issues on merit. For this, assessee has raised following ground no. 1:

“1. Against ex parte dismissal of appeal:

a) For that on the facts and circumstances of the case and in law, the Ld. CIT(A) erred in dismissing the appellant’s appeal for alleged non-pursuing of the appeal.

b) For that on the facts and circumstances of the case and in law, the Ld. CIT(A) erred in dismissing the appellant’s appeal in limine without consideration of the subject issues on merit.”

3. We have heard rival submissions and gone through the orders of the authorities below.

We find that the order of CIT(A) is ex parte and even non-speaking order, which is as under:

“Nobody attended in response to fixation of hearings on 14.10.11, 25.01.12 & 09.02.2012.

It appears the appellant is not interested in pursuing the appeal and filing the submissions in spite of giving sufficient opportunities out a period of six months. Keeping in view of the judgment of (1991) 38 ITD 320 Delhi, in the case of CIT Vs. M/s. Multiplan India (Pvt.) Ltd. the appeal of the appellant is dismissed.”

After going through the order of CIT(A), We find that CIT(A) has passed a non-speaking order by following the decision of ITAT in the case of Multiplan India (Pvt.) Ltd. (supra). We are of the view that where appeal has been disposed of even though on merits without a speaking order, the order of CIT(A) cannot be sustained. The provisions of section 250(6) of the Act are in the nature of judicial discretion to the Appellate Authority and emphasizing that the order disposing of the appeal shall be a speaking order. The order shall not cryptic but shall be self explanatory.

Hence, We set aside the order of CIT(A) and restore the matter to his file for fresh adjudication after providing reasonable opportunity of being heard to the assessee. Appeal of assessee is allowed for statistical purposes.

4. In the result, appeal of assessee is allowed for statistical purposes.

5. Order pronounced in the open court.

                                                         Sd/-                 Sd/-

                                             (Pramod Kumar) (Mahavir Singh)

                                         Accountant Member Judicial Member

Dated: 11th September, 2012

Jd.(Sr.P.S.)

Copy of the order forwarded to:

1. APPELLANT – Dynamic Process Pvt. Ltd. C/o Shri Sawar Dhanania, 46B, Shakespeare Sarani (1st floor), Kolkata-700 017.

2. Respondent – ACIT, Circle-1, Hooghly

3. The CIT(A), Kolkata

4. CIT Kolkata

5. DR, Kolkata Benches, Kolkata

True Copy,

By order,

Asstt. Registrar.