SHUJAT DILAWAR SAYED,MUMBAI vs. ITO 21(3)(2), MUMBAI

Assessee by : Shri Sabir M. Shaikh (AR) Revenue by : Shri B.S. Bist (DR) Date of hearing : 23.01.2017 Date of Pronouncement : 23.01.2017 Order Under Section 254(1) of Income Tax Act PER PAWAN SINGH, JM: 1. This appeal by assessee u/s 253 of the Income-tax Act (‘Act’) is directed against the order of Ld. Commissioner of Income-tax (Appeals) [for short ‘the CIT(A)] –32, Mumbai dated 08.10.2013 for Assessment Year (AY) 2009-10. The assessee has only one ground of appeal i.e. “ the ld. CIT(A) was not justified in dismissing the appeal by invoking the provision of section 249 (4)(a) of the IT Act, 1961 without giving opportunity to represent the matter as there was typographical mistake in Form No.35”.

2. Brief facts of the case are that the AO levied a penalty of Rs. 47,879/- u/s 271B dated 29.06.2012 against the assessee holding that assessee failed to get his Account Audited for Financial Year (FY). Aggrieved by the order of AO, the assessee filed the appeal before the ld. CIT(A). The ld. CIT(A) not admitted the appeal of the assessee holding that holding that assessee has not paid tax as provided u/s 249(4). Further aggrieved by the order of ld CIT(A) the assessee filed present appeal before us.

2 Shujat Dilawar Sayed 3. We have heard the ld. Authorized Representative (AR) of the assessee and ld. Departmental Representative (DR) for the Revenue and perused the material available on record. The ld. AR for the assessee placed on record the copy of Income-tax Return for relevant AY showing that advance tax of Rs. 27,000/- was paid. The Ld. AR of the assessee further argued that due to typographical mistake in column No.10 of Form No. 35, the assessee wrongly mentioned as ‘NO’. Which resulted to draw the inference by ld CIT(A) that no tax on the return income has been paid. The mistake could not be rectified due to inadvertence and omission. On the other hand, ld. DR for the Revenue on going through the copy of acknowledgement of return fairly admitted that advance tax has already been paid by the assessee. We really appreciate the assistance of ld DR for the revenue 4. We have considered the contentions of the ld representatives of the parties. We have seen that there is in fact typographical mistake in column No. 10 of Form No.35. The appeal of the assessee was dismissed for this reason alone. We have seen that ld. CIT(A) has not issued any notice of hearing or notice for explaining the reason before dismissing the appeal. Keeping in view the typographical mistake which could not be explained in absence of any notice of from ld. CIT(A). We accept the appeal of assessee and restore the matter to the file of ld. CIT(A) to decide the case on merit in accordance with law. Needless to say that ld. CIT(A) shall afford a reasonable and fair opportunity to the assessee. The ld. AR of the assessee is also directed to bring on record all the material and evidence before the ld. CIT(A). With these observations, the appeal of the assessee is allowed for statistical purpose.