Loading judgment…
Facts
The assessee filed appeals against the order of the CIT(A) which dismissed the appeals ex parte for failure to appear. The assessee claimed that notices were not received or served, preventing them from presenting their case and thus argued the order was illegal. The Revenue supported the CIT(A)'s order.
Held
The Tribunal held that the notices issued by the CIT(A) were not proven to be served on the assessee, and therefore, the assessee was not given an effective opportunity of hearing. Consequently, the impugned order was set aside.
Key Issues
Whether the CIT(A) order dismissing the appeal ex parte is valid if proper notice and opportunity of hearing were not given to the assessee.
Sections Cited
250
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, MUMBAI BENCH “C”, MUMBAI
Before: SHRI NARENDRA KUMAR BILLAIYA & SHRI RAJ KUMAR CHAUHAN
O R D E R PER RAJ KUMAR CHAUHAN (J.M.): 1. Both the appeals are filed by the appellant/assessee against the order of Learned Commissioner of Income Tax (Appeals) / National Faceless
Appeal Centre (NFAC), Delhi [hereinafter referred to as the “CIT(A)”], passed under section 250 of the Income Tax Act, 1961 [hereinafter referred to as “the Act”] dated 14.05.2024 for the A.Y. 2008-09 and 2007-08 respectively, wherein the Ld. CIT(A) has dismissed the appeals ex parte as despite services of notice, the assessee failed to present its case before the Ld. CIT(A).
Since the facts of both the appeals filed by the assessee are exactly same and parties are same, hence both the appeals are taken up together in order to avoid the multiplicity of the decision. First of all, we are taking AY 2008-09 as lead case.
It was argued on behalf of the appellant/assessee that the notice issued by the Ld. CIT(A) were never received or served upon the assessee and as such they could not present its case before the Ld. CIT(A) who proceeded ex parte and decided the appeal on merit without giving effective opportunity of hearing to the assessee and as such the assessee was prevented from present its case before the Ld. CIT(A). Therefore, the impugned order suffers from illegality and liable to be set aside. The Ld. DR on the other hand supporting the judgment of the Ld. CIT(A)
stating that there is no merit in the appeal and same is liable to be dismissed.
We have considered the rival submissions. Section 250 sub section 2(a) of "the Act" provides as under:
“Section 250 (2) The following shall have the right to be heard at the hearing of the appeal: - a. The appellant, either in person or by an authorised representative;” 5. It is evident from the provision that the hearing to be given is not a formality but an effective hearing is sine qua non for the purpose of upholding the principal of natural justice. We have examined the impugned order of the Ld. CIT(A) who observed as under: -
As mentioned in Para 4 of this appeal order, this office has issued several letters/notices to file written submission. However, no submission has been filed by the appellant. The notices were issued on email available in the ITBA Module of the Income Tax Department. In fact a final opportunity notice was also issued on 07.05.2024, which is as under:- "This is the final opportunity provided to you to represent your case failing which, it will be considered that you have no material / evidence to adduce in favour of your contention and your case would be decided as per material available on record." No reply has been received in response to this final opportunity provided to the appellant before completing the appellate proceeding.
Appellant has not complied with any of the notices as mentioned in previous para. It is clear that the appellant is not interested in pursuing his appeal before the First Appellate Authority. The maxim 'vigilantibus non- dermientibusjurasubvenunt' i.e. "the law assists those who are vigilant and not those who sleep over their rights" is applicable. I also draw strength from the principles enunciated by the Apex Court and the various courts of the land as detailed hereunder:
xxxxx
xxxx
9. The appellant has been provided sufficient opportunities but appellant failed to submit any submission or evidence in appeal proceedings in support of grounds of appeal as well as statement of facts and remained non-compliant. In view of the above facts, it is held that appellant is not interested in pursuing the appeal and the claims made by the appellant do not have any strength. Therefore, on the basis of facts of the case, I am constrained to uphold the order of the AO and accordingly all the grounds raised in the appeal are dismissed.
6. It is thus evident from the contents of the impugned order extracted above that no effective opportunity of hearing has been given and there is no proof that the notice sent on various dates were duly served or brought to the notice of the appellant/assessee.
7. For these reasons, we are of the considered opinion that matter needs to be restored to the file of the Ld. CIT (A) for giving effective hearing to the assessee who shall present its case before the Ld. CIT(A) within 60 days. The impugned order is accordingly set aside and appeal filed by the assessee is allowed in above terms. 2. (A.Y: 2007-08)
8. Since we have already decided the similar appeal by the assessee in AY 2008-09 and the facts of this appeal are exactly similar, therefore the findings in for AY 2008-09 shall mutatis mutandis apply to this appeal also. Hence, the matter is restored to the file of Ld. CIT(A) for deciding afresh with giving an effective hearing to the assessee. The assessee shall present its case before Ld. CIT(A) within 60 days.
In the result, both the appeals filed by the assessee are allowed for statistical purposes.
Order pronounced in the open court on 07.01.2025