SHRI UTTAMCHAND S. JAIN,MUMBAI vs. ITO - 19(3)(5), MUMBAI

Shri Aadesh Shah appearing on behalf of the assessee submitted that the CIT(A) has dismissed the appeal of assessee in an ex-parte proceedings. The ld. Authorized Representative for the assessee submitted that after filing of appeal in April, 2015, the assessee had shifted to the new address. After change of address, the assessee informed new address to the CIT(A) vide letter dated 19/09/2016. The said intimation is at page -3 of the Paper Book. The assessee also took necessary steps to get the new address incorporated in PAN database. After the change in PAN database intimation was received from the Department, the same is at page -4 of the paper book. The CIT(A) issued notices to the assessee at the old address which were never served on the assessee. The CIT(A) decided the appeal ex-parte confirming the additions made in the assessment order dated 24/03/2015 passed u/s. 143(3) r.w.s. 263 of the Income Tax Act, 1961 ( in short ‘the Act’). The ld. Authorized Representative for the assessee further submitted that assessee did not receive the copy of the impugned order dated 23/10/2019. Subsequently, on an enquiry it transpired that all the appeal files have been transferred under Faceless Appeal Scheme. On enquiry made from online portal of the Income Tax Department the assessee came to know on 14/01/2021 that appeal of the assessee has already been dismissed by CIT(A) vide order dated 23/10/2019. The assessee thereafter downloaded the order of CIT(A) from the portal and filed the present appeal. The ld. Authorized Representative for the assessee submitted that the sequence of events from the date of filing Form No.35 (A.Y.2009-10) (A.Y.2010-11)

Shri S N Kabra representing the Department vehemently defended the impugned order and prayed for dismissing the appeal of assessee. The ld. Departmental Representative submitted that CIT(A) has given ample opportunity to the assessee to defend his case. A perusal of para-4 of the order of CIT(A) would show that repeated notices were sent to the assessee, however, the assessee failed to respond to the said notices.

Both sides heard, orders of authorities below examined. The CIT(A) in an ex-parte proceedings has dismissed the appeal of assessee. The assessee shifted to his new address after filing of the appeal in Form-35 in April, 2015. The assessee intimated the CIT(A) about change of address on 19/09/2016. The CIT(A) issued notices to the assessee on 25/02/2016, 25/07/2016, 10/11/2016, 28/12/2016, 15/02/2017 and 02/07/2018. These notices were purportedly issued on old address of the assessee, as mentioned in Form No.35. Out of six notices, four were issued after the assessee intimated the CIT(A) about change of address. The CIT(A) failed to take cognizance of the intimation of new address by the assessee. The assessee also took steps to get his new address incorporated in PAN database. This fact is evident from the communication received by assessee from the Department intimating change of address in PAN database (at page-4 of the Paper Book). From the documents on record it can be construed that non-appearance by the assessee before CIT(A) was for bona-fide reason- non service of notice. Taking into consideration entire facts, we deem it appropriate to restore this appeal back (A.Y.2009-10) (A.Y.2010-11)

The ld. Authorized Representative for the assessee submitted that the appeal of the assessee for Assessment Year 2010-11 has been dismissed by the CIT(A) in an ex-parte proceedings. The reason for non-appearance of the assessee before the CIT(A) is non-service of the notice. The assessee has filed an affidavit giving sequence events and reasons for non-appearance before the CIT(A).

The ld. Departmental Representative submitted that in Assessment Year 2010-11 assessee never appeared before the Assessing Officer and CIT(A). The Assessing Officer was constrained to invoke provisions of section 144 of the Act as the assessee never responded to the notices issued by the Assessing Officer. Even before the CIT(A) the assessee failed to appear despite repeated notices.

Both sides heard. We find non-service of notices issued by the CIT(A) was for the reason for assessee’s non-appearance before the First Appellate Authority. The facts in present appeal are identical to facts in appeal for Assessment Year 2009-10. Taking into consideration entirety of facts, we deem it appropriate to restore this appeal back to the file of CIT(A) for denovo (A.Y.2009-10) (A.Y.2010-11)

To sum up, Appeal in & Assessment Years 2009-10 and 2010-11, respectively are allowed for statistical purpose.