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Facts
The assessee's appeal against an ex-parte order of the Ld. Addl./Joint Commissioner was dismissed due to non-compliance despite multiple opportunities. The assessee attributed the non-appearance to a medical emergency of their representative and a missed notice.
Held
The Tribunal acknowledged the medical reasons for the non-appearance but also noted the assessee's prior non-compliance on 8 previous occasions. Consequently, the Tribunal decided to remand the case back to the Ld. Addl./Joint Commissioner for a fresh decision.
Key Issues
Whether to allow a fresh opportunity to the assessee to present their case after repeated non-compliance, considering the reasons provided.
Sections Cited
250, 143(3), 147
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, MUMBAI BENCH “K (SMC
Before: SHRI NARENDER KUMAR CHOUDHRY & SHRI PRABHASH SHANKAR
Per : Narender Kumar Choudhry, Judicial Member:
This appeal has been preferred by the Assessee against the order dated 27.01.2025, impugned herein, passed by the Ld. Addl/Joint Commissioner of Income Tax (Appeals) (in short “Ld. Addl./Joint Commissioner”) under section 250 of the Income Tax Act, 1961 (in short ‘the Act’) for the A.Y. 2009-10.
In the instant case, the Assessing Officer (AO) vide order dated 30.12.2011 u/s 143(3) r.w.s. 147 of the Act has made various additions on account of disallowances of expenses, testing charges, professional charges and freight charges etc.
The Assessee, being aggrieved, challenged the assessment order and the additions by filing first appeal before the Ld. Addl./Joint Commissioner, who, though afforded 9 opportunities to the Assessee, however, the Assessee made no compliance. Therefore, in the constrained circumstances the Ld. Addl./Joint Commissioner decided the appeal of the Assessee by an ex-parte order and ultimately affirmed the additions by dismissing the appeal of the Assessee. The Assessee by filing duly sworn affidavit dated 17.04.2025 of Mr. V.V. Donga, has claimed that on dated 29.12.2024 Mr. Donga suffered a cardiac arrest and was admitted in hospital for treatment and remained hospitalized for 5 days and on discharge, the doctor had strictly prescribed him not to go office and rest for few weeks. Mr. Donga further submitted ”since his health was not good, as he was not going to office, the notice dated 07.01.2025 was inadvertently missed. There was inadvertent omission on his part in not attending the hearing fixed on 14.01.2025 due to bad health and unintended lapse on his part and hence could not attend the hearing of the aforesaid appeal; that such mistake was realized only after the receipt of the order on dated 27.01.2025 by the Assessee. The above mistake was absolutely unintentional and inadvertent and the Assessee should not be penalized due to his inadvertent error”. Mr. V.V. Donga has also filed the relevant medical documents. The Assessee, therefore, has prayed for leniency and submitted that one last and final opportunity may be afforded to the Assessee, may be subjected to putting any condition including by imposing a reasonable cost.
On the contrary, the Ld. D.R. refuted the claim of the Assessee.
We have given thoughtful considerations to the reason given by the Assessee for non appearance before the Ld. Addl./Joint Commissioner. Though the reason for non appearance before the Ld. Addl./Joint Commissioner on the date of hearing on dated 14.01.2025, in response to the notice dated 07.01.2025, is substantiated by the supporting affidavit and document, however, it is a fact that prior to 14.01.2025 the case was also fixed by the Ld. Addl./Joint Commissioner on 8 occasions by issuing the notices which are not in denial. Therefore, considering all the facts and circumstances specific to the effect that in the absence of relevant documents and/or reply/explanation, the issues involved in the instant case remained to be adjudicated in its right perspective and proper manner by the Ld. Addl./Joint Commissioner and therefore for the just and proper decision of the case and substantial justice and considering the conduct of the Assessee, we are inclined to remand the instant case to the file of the Ld. Addl./Joint Commissioner for decision afresh, however, subject to deposit of cost of Rs.15,000/- to be paid under “other heads” in the Revenue Department within 30 days from the date of the order. Thus, the case is remanded to the file of the Ld. Addl./Joint Commissioner in the aforesaid terms accordingly.
In the result, the appeal filed by the Assessee stands allowed for statistical purposes.
Order pronounced in the open court on 28.04.2025.