M/S MORYA GRAIN DISTILLERIES PVT LTD.,MUMBAI vs. ACIT 15 (2)(2), MUMBAI

ITA 7829/MUM/2019Status: DisposedITAT Mumbai30 August 2021AY 2014-153 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that the CIT(A) had erred in dismissing the appeal for non-prosecution without proper service of notice. The appeal was restored to the CIT(A) for adjudication on merits after affording a proper opportunity of hearing.

What were the facts?

The assessee's appeal before the CIT(A) was dismissed ex-parte for non-appearance. The assessee claimed they never received the notice of hearing as it was sent to an old address, despite providing a new address to the AO and in their Form-35.

What were the issues?

Whether the CIT(A) can dismiss an appeal for non-prosecution when the assessee did not receive proper notice of hearing due to an incorrect address being used for service.

Which sections of the Income-tax Act were involved?

Not specified

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, MUMBAI BENCH “B”, MUMBAI

Hearing: 04/08/2021Pronounced: 30/08/2021

ORDER PER VIKAS AWASTHY, J.M: This appeal by the assessee is directed against the ex-parte order of Commissioner of Income Tax (Appeals)-24, Mumbai [hereinafter referred to as the ‘CIT(A)’] dated 06.09.2019 for the Assessment Year (AY) 2014-15. 2. Sh. Kalpesh Turalkar appearing on behalf of the assessee submitted that the CIT(A) has dismissed the appeal for non-appearance. The assessee never (A.Y. 2014-15) received the notice of hearing from the CIT(A). The assessee had given the address for service of notice in Form-35 filed before the CIT(A), the CIT(A) sent the notice of hearing on the old address of the assessee. The assessee had even intimated new address to the Assessing Officer (AO). In the assessment order, the AO has mentioned correct address of the assessee. The ld. Authorized Representative (AR) submitted that the assessee has prima facie good case in its favour. If the appeal is restored back to the file of CIT(A) for adjudication on merits, the assessee would be able to make out a cased in its favour.

Sh. Tharian Oommen representing the Department fairly admitted that the appeal can be restored back to the file of CIT(A) for denovo adjudication on merits.

Both sides heard, orders of the authorities below examined. A perusal of impugned order shows that the CIT(A) in an ex-parte proceedings has dismissed the appeal of assessee for non-prosecution. The CIT(A) ostensibly sent notice to the assessee multiple times on the address available on ITBA portal instead of the address mentioned by the assessee in Form-35. Since, the assessee had shifted to the new address as mentioned in Form-35, the notices sent by the CIT(A) were never served on the assessee, hence, the assessee failed to respond to the notices from CIT(A). We further observe that the CIT(A) had sent notice through email on address different from the one mentioned in Form-35. Thus, there was apparent error on the part of CIT(A) in service of notice to the assessee. The Tribunal has time and again held that the CIT(A) has no power to dismiss the appeal for non-prosecution or non-appearance. Once the appeal is filed before the CIT(A), the CIT(A) is duty bound to dispose of the appeal on merits after affording opportunity of hearing to the assessee.

(A.Y. 2014-15) 5. Without commenting on merits of the issue raised in ground no. (ii) of the appeal, the appeal is restored to the CIT(A) for denovo adjudication after affording opportunity of hearing to the assessee, in accordance with law. The CIT(A) shall serve notice to the assessee on the address mentioned in Form-35. The assessee is directed to appear before the CIT(A) upon service of notice and co-operate in First Appellate proceedings.

In the result, impugned order is quashed and the appeal of assessee is allowed for statistical purpose in the terms aforesaid. Order pronounced in the open court on Monday, the 30th day of August, 2021.

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