MUKESH DESAI,MUMBAI vs. WARD 25(3)(1), MUMBAI

The appeal is barred by limitation by 8 days and the assessee has moved a petition requesting the bench to condoned the delay

Having heard the parties on this preliminary issue, we are of the view that there was reasonable cause in filing the appeal belatedly before the Tribunal. Accordingly, we condone the delay and admit the appeal for hearing.

We noticed that the assessee did not file any written submission before the learned CIT(A) and hence he has passed the order on the basis of 2 Mukesh Desai material available on record, meaning thereby, the learned CIT(A) has passed the ex-parte order and the assessee did not get opportunity to present his case before the learned CIT(A).

The Learned AR appearing for the assessee sought adjournment on the ground that the assessee has filed a RTI application seeking photocopy of the notice issued under section 274 read with section 271(1)(c) of the I.T. Act. He submitted that the penalty was levied for two years in the hands of the assessee and assessee did not have copy of the penalty notice issued for the year under consideration. In another year, the copy of the notice was available and it was observed that inapplicable limb was not struck off in the notice. Hence the assessee raised a legal ground before the Tribunal in that year and the said appeal of the assessee was allowed on this legal ground.

The learned AR submitted that the assessee has sought copy of the notice under RTI in order to verify whether inapplicable limb has been struck off in the notice or not. If it is not struck off, then penalty proceeding is liable to be quashed as per the decision rendered by Hon’ble jurisdictional High Court.

We heard Ld D.R and perused the record. The reasoning cited by the Ld A.R is not convincing us to grant adjournment. We noticed earlier that the Ld CIT(A) has passed ex-parte order without hearing the assessee. Since the order has been passed by the learned CIT(A) ex-parte, in the interest of natural justice, we are of the view that the assessee should be provided with one more opportunity to present his case before the learned CIT(A). The assessee may raise the legal contentions, if advised so, before the learned CIT(A) also.

Accordingly, we set aside the order passed by the learned CIT(A) and restore all the issues to his file for adjudicating them afresh after affording adequate opportunity of being heard to the assessee.