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Income Tax Appellate Tribunal, “ C ” BENCH, MUMBAI
Before: SHRI MAHAVIR SINGH, JM & SHRI SANJAY ARORA, AM
सुनवाई क� तार�ख /Date of Hearing : 04/07/2016 घोषणा क� तार�ख /Date of Pronouncement : 03/08/2016 आदेश / O R D E R PER BENCH: This is an appeal by the Assessee challenging the order of ld. Commissioner of Income Tax (Appeals)-25, Mumbai dated 3.11.2010 for the assessment year 2007-08, whereunder the ld.CIT(A) dismissed the appeal on the ground of delay in filing the appeal and non compliance with Rule 45 r.w.s.249 of the Income Tax Act, 1961.
A perusal of the appellate order clearly shows that the order was passed ex-parte. It was recorded that the assessee failed to file the appeal in 2 1422/Mum/2011 conformity with Rule 45 r.w.s.249 of the Act and as a matter of fact there is a delay of 10 days in filing the appeal. Recording that the assessee was non- cooperative with the authority in proceeding with the matter and since the appeal cannot be entertained for non-compliance with the statutory requirements, the ld. CIT(A) dismissed the appeal while confirming the order of assessment.
Heard the ld.DR and the ld.DR fairly conceded that the impugned order is ex-parte order and the delay was only of 10 days.
Grievance of the assessee was brought to the notice of ld.CIT(A) by way of appeal, the assessee’s stand was that the assessee was out of station for performing some poojas/religious rituals for his late father and went for pilgrimage as per the custom and religious requirements of the family, therefore, the absence was not intentional and was only due to the reasons beyond his control. It is the settled principle of law that when the technicalities are against the possibility of delivery of substantial justice, the forum must give way to the litigant. The highest that (would) happen by condoning the delay is that a cause will be decided on merits which is in the interest of justice. So also at the same time it is necessary to secure due diligence from the assessee in the conduct of the matter before the ld.CIT(A) by complying with rule 45 of the Rules, r.w.s.269 of the Act.
3 1422/Mum/2011
With this view of the matter, we set aside the order dated. 3.11.2010 of the ld. CIT(A) and restore the same to his file for fresh disposal by giving fair and reasonable opportunity of being heard to the assessee and allowing him to comply with the provisions of rule 45 r.w.s.269 of the Act. We also make it clear that this is a last opportunity in furtherance of interest of justice.
In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open court on 03rd August, 2016 Sd/- Sd/- (SANJAY ARORA) (MAHAVIR SINGH ) लेखा सद�य / Accountant Member �या�यक सद�य / Judicial Member मुंबई Mumbai; �दनांक Dated : 03rd August,2016 PS: AG(On Tour) आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : अपीलाथ� / The Appellant 1. ��यथ� / The Respondent 2. आयकर आयु�त(अपील) / The CIT(A) 3. आयकर आयु�त / CIT – concerned 4. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, मुंबई / DR, ITAT, Mumbai 5. गाड� फाईल / Guard File 6. आदेशानुसार/ BY ORDER,