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| The Tax Publishers2020 TaxPub(DT) 3119 (Jp-Trib) INCOME TAX ACT, 1961
Section 250
Where issue with regard to validity of reopening of assessment, was not adjudicated by CIT(A) due to non-appearance of assessee, however, the same would not give an absolute right to assessee to raise such issue before Tribunal without having benefit of finding of the CIT(A), accordingly, the issue was remanded to CIT(A) to adjudicate the same on merits after granting one more opportunity to the assessee.
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Appeal (CIT(A)) - Order - Appeal dismissed for non-prosecution -
AO received information regarding bogus commodity entries received by assessee-company on account of speculative profit. Thus, the AO referred the transactions of the assessee, which were found to be bogus commodity entries of speculative profit to be set off against speculative loss brought forward by the assessee. Accordingly, the AO reopened assessment and reassessment order was passed. Aggrieved, assessee filed an appeal before CIT (A), which was dismissed ex parte due to non appearance of assessee. Further, before Tribunal the assessee challenged the validity of reopening of the assessment. It submitted that the legal issue could be raised even for the first time before the Tribunal and its non appearance before the CIT(A) should have no bar for raising and arguing such issue before the Tribunal. Held: It was found that assessee's appeal was dismissed by CIT(A) when nobody attended despite providing several opportunities. Further, the assessee submitted that the issue of validity of reopening of assessment being a legal issue could be raised at any stage however, that would not mean that the assessee got right to bypass the CIT (A) deliberately and then raise the issue before the Tribunal. When, the assessee filed an appeal and raised the issue before the CIT (A) then the matter ought to have been decided by the CIT(A). Therefore, the non-adjudication of the issue by the CIT (A) due to non-appearance of the assessee would not give an absolute right to the assessee to raise the issue before the Tribunal without having benefit of finding of the CIT (A). Further, it was found that the issue raised by the assessee was a mixed question of law and facts and the legal issue could be decided only after considering the factual aspect of the transactions. Accordingly, the issue was remanded to the CIT(A) to adjudicate the same on merits after granting one more opportunity to the assessee.
REFERRED :
FAVOUR : Matter remanded
A.Y. : 2010-11
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