Merely because the assessee failed to submit the grounds of appeal as an attachment at the time of fling Appeal could not be a basis to pass the order ex-parte




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Merely because the assessee failed to submit the grounds of appeal as an attachment at the time of fling Appeal could not be a basis to pass the order ex-parte

 

Merely because the assessee failed to submit the grounds of appeal as an attachment at the time of fling its memo of appeal in Form No.35, could not be a basis for the appellate authority to pass the order ex-parte especially when the submissions sufficiently reflected the grounds on which the order of assessment was being challenged in the appeallate proceedings.

In the result, assessee’s writ petition was allowed and order impugned was set aside and matter was remanded to CIT(A) for fresh consideration.

The copy of the order is as under:

 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY

ORIGINAL CIVIL JURISDICTION

 

WRIT PETITION (LODGING) NO. 36794 OF 2022

 

Prime ABGB Private Limited

(PAN : AABCP6338G), a private limited

company having registered offce at 106-109,

Simlim Square, D.B. Marg,

Lamington Road, Grant Road East,

Mumbai – 400 007.                                                                                          ……………………Petitioner

 

Versus

1.   National Faceless Appeal Centre

Income Tax Department, New

 

2.   Income Tax Offcer – 5(2)(1), Mumbai

Aaykar Bhawan, Maharashi Karve Road,

Churchgate, New Marine Lines,

Mumbai 400 020.

 

3.   Principal Commissioner of

Income Tax-5, Mumbai,

501, Aaykar Bhawan, Maharashi Karve Road,

Churchgate, New Marine Lines,

Mumbai 400 020.

 

4.   The Central Board of Direct Taxes,

North Block, New Delhi – 1100 002.

 

5.   The Union of India,

Through the Secretary,

Ministry of Finance, Government of India,

North Block, New Delhi – 110 001.                                                                    ……………………..…Respondents

 

*****

Mr.Devendra Jain i/b Ms.Radha Halbe, Advocate for petitioner.

Mr.N.C. Mohanty, Advocate for respondents.

 

 

CORAM  :         DHIRAJ SINGH THAKUR &

KAMAL KHATA, JJ.

 

DATE        : 8th FEBRUARY, 2023.

 

P C :

 

 

  1. Affdavit-in-reply of respondent 2, tendered before the Court, is taken on record.
  1. The petitioner is challenging the order passed by the appellate authority under section 250 of the Income Tax Act, 1961 (‘the Act’) dated 28th September 2022 primarily on the ground that the submissions made by the petitioner and uploaded in support of his memo of appeal on 27th January 2022 and 12th September 2022 had not been considered at at all and the decision was rendered ex-parte.
  1. It is stated that the petitioner had fled his memo of appeal in Form 35, however the grounds of appeal were not attached at the time of fling of Form 35 on account of  some  technical It is stated that during the course of the appeal proceedings, by virtue of notice dated 29th August 2022, the petitioner was required to submit its grounds of appeal, which was not responded to by the petitioner. Subsequently, the petitioner was asked to upload the submissions vide notices dated 28th December 2020 and 27th December 2021, to which the petitioner responded and fled its online submissions on 27th January 2022 and 12th September 2022, respectively.
  1. The case set up is that without  considering  the submissions, the order impugned has been passed by  the appellate authority holding that there was no response to the notices issued to the petitioner, which, it is stated was factually incorrect.
  1. Counsel for the respondents, on the other hand, does not deny that the submissions were uploaded on 27th January 2022 and 12th September 2022, however, it is stated that the same were not visible to the appellate authority.
  1. We fail to understand as to how it is possible that submissions once uploaded, were not visible to the appellate It is certainly not the case of the revenue that the submissions were uploaded on a portal different from the one on which the appeal proceedings were being conducted. If that be so, merely because the petitioner has failed to submit the grounds of appeal as an attachment at the time of fling its memo of appeal in Form No.35, could not be a basis for the appellate authority to pass the order ex-parte especially when the submissions suffciently refected the grounds on which the  order  of assessment was being challenged in the appeal proceedings.
  1. We are, therefore, of the view that the order impugned passed by the appellate authority thus violated the principle of natural justice as the same has been passed ex-parte, without considering the submissions made by the petitioner.
  1. We, therefore, allow the petition and set aside the order impugned dated 28th September 2022 and remand the matter to the appellate authority, for a fresh consideration. The submissions already uploaded may be considered in their correct perspective and orders be passed not later than three months from today.
  1. The petition is disposed of

[ KAMAL KHATA, J. ]                                                                                           [DHIRAJ SINGH THAKUR, J.]




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