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Income Tax Appellate Tribunal, MUMBAI BENCHES “E”, MUMBAI
Before: SHRI B.R.BASKARAN (AM) & SHRI RAM LAL NEGI (JM)
The present appeal has been preferred by the assessee against order dated 24/12/2013 passed by the Ld. CIT(Appeals)-30 Mumbai for the Asst. Year 2009-10, whereby the Ld. CIT(A) dismissed the appeal filed by the assessee against assessment order passed u/s 144 of the Income Tax Act, 1961 (in short ‘the Act’).
Aggrieved by the impugned order the assessee in appeal before the Tribunal raising following effective grounds of appeal:-
NATURAL JUSTICE:
1.1 The Learned Commissioner of Income-tax(Appeals)-30, Mumbai [“Ld. CIT (A)”] erred in passing the appellate order without giving sufficient, proper and adequate opportunity of being heard to the Appellant.
1.2 It is submitted that in the facts and the circumstances of the case, and in law, the appellate order be held as bad in law as the same is passed in breach of the principles of natural justice.
WITHOUT PREJUDICE TO THE ABOVE
2.1 The Ld. CIT(A) erred in dismissing the appeal of the appellant on the ground that the appeal was not in proper form.
2.2 It is submitted that in the facts and the circumstances of the case, and in law, no such action was called for.
WITHOUT FURTHER PREJUDICE TO THE ABOVE:
3.1 The Ld. CIT(A) erred in not condoning the delay in filing the appeal on the ground that the application for condonation of delay was not signed properly.
3.2 It is submitted that in the facts and the circumstances of the case, and in law, no such action was called for.
The appellant/assessee at the outset submitted that the impugned order is bad in law, as the same has been passed in violation of principle of natural justice. The assessee was not afforded reasonable opportunity of being heard. Secondly, the Ld. CIT(A) has wrongly dismissed the application for condonation of delay in filing the appeal on the ground that the application was not signed properly. Hence the order is liable to be set aside.
On the other hand the Ld. Departmental Representative (DR) relying on the findings of the Ld. CIT(A) submitted that since the assessee did not appear on the date of hearing despite service of notice and since the application for condonation of delay in filing appeal was not properly signed by the assessee, the Ld. CIT(A) has rightly dismissed the appeal.
We have heard the rival submissions and also gone through the material placed before us. We notice that the appeal was fixed for hearing on 19.9.2013 and the notice to this effect was issued on 05.9.2013. The assessee did not appear on the said date despite the service of notice. The appeal was adjourned to 18.11.2013 and notice was accordingly served upon the assessee. On the said date an application was filed on behalf of the assessee for adjournment. As per the Ld. CIT(A), the application was neither signed by the assessee nor any authority letter was enclosed therewith to justify the action. The appellant was however, given another opportunity to appear on 6.12.2013 but the assessee again did not appear on the said date of hearing. The Ld. CIT(A) has dismissed the appeal of the assessee holding as under :-
“In view of the foregoing discussion, I hold that Appeal Form No 35, has not been signed and certified by the appellant and the application for condonation of delay has also not been signed by the appellant. The appeal therefore, not being in proper form and order is not admitted hence, dismissed. “
So, the Ld. CIT(A) appeal has dismissed the appeal on technical ground that the appeal memo and application for condonation of delay had not been signed by the appellant, without going into the merit of the case. Although the facts on record suggest that the assessee failed to appear before the 1st appellate authorities i.e. on 6.9.2013 and 6.12.2013, when the case was fixed for hearing, yet in our considered view it is not in the interest of justice to decide the appeal on technical grounds ignoring the merit of the case. Hence, the assessee should get an opportunity to present his case before the first appellate authority. We, therefore, allow the first ground of appeal of the assessee in the interest of justice and without deciding the appeal on merit, remand this appeal to the Ld. CIT(A) for adjudicating the same afresh after giving a reasonable opportunity of being heard to the appellant/assessee. The appeal is disposed of accordingly.
In the result, the assessee’s appeal for the assessment year 2009-10 is partly allowed.
Order pronounced in the open court on 31st October, 2016