Shantilal S Jain, HUF Vs ITO (ITAT Mumbai)
In this case CIT(A) has dismissed the appeal on technical ground as the assessee has not file the same electronically as per Rule 45 of the Income-tax Rule. It appears that only one notice was issued by the CIT(A) to the assessee and the status of the service of the same is also not mentioned in the impugned order. Therefore, the dismissal of the appeal on technical ground by the CIT(A) without giving an effective and sufficient opportunity to the assessee to rectify the mistake in filing the appeal is in contravention of principle of natural justice. Hence, in the facts and circumstances of the case and in the interest of justice, we set aside the impugned order of the CIT(A) and remand the matter back to the record of the CIT(A) for deciding the same afresh on merits after giving one more opportunity to the assessee to rectify the mistake for filing the appeal. The assessee is allowed one more opportunity to file the appeal electronically within a period of two months from the date of receipt of this order.
FULL TEXT OF THE ORDER OF ITAT MUMBAI
This appeal by the assessee is directed against the order dated 12/02/2019 of Commissioner of Income-tax (Appeals) for the assessment year 2009-10.
2. None has appeared on behalf of the assessee when this appeal was called for hearing. However, we note that the CIT(A) has dismissed the appeal of the assessee in limine on technical ground of non filing of appeal electronically. Therefore, we propose to hear and dispose of this appeal exparte.
3. We have heard he Ld.DR who has relied upon the orders of authorities below and carefully perused the impugned orders of the Assessing Officer as well as the CIT(A). The re-assessment order was passed exparte under section 144 r.w.s. 147 of the I.T. Act, 1961 which was challenged before the CIT(A). The CIT(A) has dismissed the appeal of the assessee by treating the same as non est as under:-
“The appellant has filed appeal manually on 12.04.2016. As per Rule 45 of I. T. Rules 1962, appeal shall be made in Form no. 35 electronically. The appeal of the appellant is in contravention of Rule 45 of I. T, Rule 1962. Show cause notice dated 01.02.2019 was issued to the appellant. There was no reply. Hence, the same is dismissed as non-est.”
4. Thus, it is clear that the CIT(A) has dismissed the appeal on technical ground as the assessee has not file the same electronically as per Rule 45 of the Income-tax Rule. It appears that only one notice was issued by the CIT(A) to the assessee and the status of the service of the same is also not mentioned in the impugned order. Therefore, the dismissal of the appeal on technical ground by the CIT(A) without giving an effective and sufficient opportunity to the assessee to rectify the mistake in filing the appeal is in contravention of principle of natural justice. Hence, in the facts and circumstances of the case and in the interest of justice, we set aside the impugned order of the CIT(A) and remand the matter back to the record of the CIT(A) for deciding the same afresh on merits after giving one more opportunity to the assessee to rectify the mistake for filing the appeal. The assessee is allowed one more opportunity to file the appeal electronically within a period of two months from the date of receipt of this order.
5. In the result, the appeal is allowed, for statistical purpose.
Order pronounced in the open court on 04/042022
