CIRCUMFERENCE DESIGN PVT. LTD.,MUMBAI vs. ITO 12 (1)(4), MUMBAI

When the appeal was called for hearing, none was present on behalf of the assessee. However, considering the nature of dispute, I proceed to dispose of the appeal ex-parte qua the assessee with the assistance of learned Departmental Representative and based on material on record.

Briefly the facts are, the assessee is a resident company. For the assessment year under dispute, the assessee had filed its return of income on 26.09.2010 declaring total income of Rs. 13,85,570/-. Subsequently, the Assessing Officer (AO) having reason to believe that income assessable to tax for the year under consideration has escaped assessment, reopened the assessment under section 147 of the Act. As observed by the AO, in course of assessment proceedings, the assessee did not respond to notice issued under sections 142(1) and 143(2) of the Act. Accordingly, the AO proceeded to complete the assessment under section 144 r.w.s. 147 of the Act to the best of his judgment. While doing so, he made various additions/disallowances resulting in determination of total income at Rs. 63,34,000/-. Against the assessment order so passed, the assessee preferred an appeal before learned Commissioner (Appeals). Learned Commissioner (Appeals) having found that the memorandum of appeal in Form No. 35 was not signed and verified by a person authorised to verify the return of income as per rule 45 of the Income Tax Rules, 1962 r.w.s. 140 of the Act, treated the appeal is invalid and dismissed it.

I have considered the submissions of the learned Departmental Representative and perused the material on record. A perusal of impugned order of learned Commissioner (Appeals) reveals that the appeal was decided ex-parte, that too, in limine by dismissing the appeal on purely technical ground of memorandum of appeal having not been signed and verified by any Assessment Year: 2010-11 authorized person. The aforesaid order of learned Commissioner (Appeals) does not reveal whether any notice was issued by him requiring the assessee to either remove the defect in the memorandum of appeal or to attend the hearing. Prima facie, it appears from the facts on record, before deciding the appeal ex-parte, that too, in limine, learned Commissioner (Appeals) has not provided a reasonable opportunity of being heard to the assessee. Therefore, there is clear violation of rules of natural justice.

In view of the aforesaid, I am inclined to set aside the impugned order of learned Commissioner (Appeals) and restore the matter back to him for fresh adjudication. In case, the appeal is defective, the assessee should be given reasonable opportunity to remove such defect. It is further directed, learned Commissioner (Appeals) must decide the appeal on merits after due opportunity of being heard to the assessee. Grounds are allowed.

In the result, appeal is allowed for statistical purposes. Order pronounced in the open court on 25th June, 2021. Sd/- (SAKTIJIT DEY) JUDICIAL MEMBER म ुंबई Mumbai; दिन ुंक Dated: 25/06/2021 Alindra, PS आदेश प्रतितिति अग्रेतिि/Copy of the Order forwarded to : 1. अपील र्थी / The Appellant 2. प्रत्यर्थी / The Respondent. 3. आयकर आय क्त(अपील) / The CIT(A)- 4. आयकर आय क्त / CIT 5. दिभ गीय प्रदिदनदि, आयकर अपीलीय अदिकरण, म ुंबई / DR, ITAT, Mumbai 6. ग र्ड फ ईल / Guard file. सत्य दपि प्रदि //True Copy// आदेशानुसार/BYORDER,