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Income Tax Appellate Tribunal, MUMBAI BENCHES “SMC”, MUMBAI
Before: SHRI R.C. SHARMA (AM) & SHRI RAM LAL NEGI (JM)
O R D E R
PER RAM LAL NEGI, JM
This appeal has been filed by the assessee against the order dated 27.09.2017 passed by the Ld. Commissioner of Income Tax (Appeals) (for short ‘the CIT (A)’)-44, Mumbai, for the assessment year 2009-10, whereby the Ld. CIT (A) has dismissed the appeal filed by the assessee against assessment order passed u/s 143 (3) read with section 147 of the Income Tax Act, 1961 (for short ‘the Act’), as withdrawn.
The assessee has preferred this appeal before the Tribunal on the following effective grounds:- 1. “On the facts and in the circumstances of the case and in law the learned Commissioner of Appeal erred in dismissing the appeal by stating that at A.R. of the appellant requested to withdraw the appeal.
2 Assessment Year: 2009-10
2. On the facts and in the circumstances of the case and in law the learned Commissioner of Appeal erred in dismissing the appeal without giving an proper opportunity of being heard to the appellant.
3. The Appellant prays that the disallowances of Rs. 12,67,951/- made by assessing officer be deleted.”
At the outset, the Ld. counsel for the assessee submitted that the order passed by the Ld. CIT (A) is contrary to the facts mentioned in the order as the assessee did not make any submission for withdrawal of the appeal pending before the Ld. CIT (A). The Ld. counsel further submitted that the assessee Shri Kandarp H. Sheth and his counsel Advocate Mr. Ritesh Upadhyay have sworn affidavits to substantiate the said contention.
On the other hand, the Ld. Departmental Representative (DR) relied on the order passed by the Ld. CIT (A).
We have heard the rival submissions and also perused the order passed by the Ld. CIT (A) in the light of the contention of the assessee. The Ld. CIT (A) has mentioned in its order that “During the appellate proceedings, vide order sheet noting dated 22.09.2017, the AR of the appellant requested to withdraw the appeal.” On the other hand the assessee has filed an affidavit stating that neither he nor his representative made any request for withdrawal of the pending appeal. The relevant contents of the affidavit sworn by the assessee read as under:- “(4) That I have not withdrawn the said appeal nor I have given any instruction to Advocate Mr. Ritesh Upadhyay to withdraw the said appeal at any time.
(5) That the Advocate Mr. Ritesh Upadhyay has also confirmed me that during the course of appeal proceedings he has not withdrawn 3 Assessment Year: 2009-10 the appeal nor furnished any letter to the CIT (A)-44 withdrawing the said appeal.”
Shri Ritesh Upadhyay, Advocate has also stated in his affidavit that neither he had received any instruction from Mr. Kandarp P. Sheth to withdraw the appeal nor he had made any submission before the CIT (A)-44 for withdrawal of the said appeal.
Admittedly, there is no written request on behalf of the assessee for withdrawal of appeal on the record. Further, it was not the case of the Ld. CIT
(A) that the request was made by the assessee himself. The authorized representative has stated that he had not made any request for withdrawal of the appeal. Under these circumstances, we are of the considered view that the assessee should get an opportunity to pursue its case before the appellate authority. We therefore, set aside the impugned order in the interest of justice without going into the merits of the case and send the file back to the Ld. CIT
(A) for deciding the appeal afresh on merits after affording opportunity of being heard to the appellant/assessee.
In the result, appeal filed by the assessee for assessment year 2009- 2010 is allowed for statistical purposes.