2020 (11) TMI 375 - AT - Income Tax

Rectification u/s 254 - defect memo did not reach to the appellant i.e., ACIT, TDS Circle 1(1), Bengaluru and hence, he had no occasion to rectify the defect pointed out by the Tribunal and therefore, in the interest of justice, this Tribunal order should be recalled to afford opportunity to the appellant to cure the defect - HELD THAT - Appeal was filed by the Revenue on 04.05.2018 and defect memo was issued by the Tribunal along with first notice for hearing of the appeal being the hearing fixed for 05.09.2018 - this acknowledgment of notice is also addressed to ACIT, Circle 1(1), Bengaluru, issued on 28.06.2018 as per which, date of hearing was fixed on 05.09.2018. As per the order sheet entries in the appeal folder, we find that on 05.09.2018, Smt. Nandini Das, Additional CIT appeared on behalf of the Revenue and it means that the acknowledgment / notice issued by the Tribunal for fixing the hearing of the appeal on 05.09.2018 was very much received by the AO appellant and then only, Additional CIT, DR appeared before the Tribunal on this date i.e. on 05.09.2018. Having received the notice of hearing issued on the same date, the Revenue cannot take this stand that defect memo issued by the Tribunal was not received by the appellant Revenue. No merit in this contention raised by the Revenue in the MP and raised by the DR of the Revenue in the course of hearing of the MP that the defect memo issued by the Tribunal has not been received by the appellant Revenue. the said notice and the defect memo both were issued on the same date i.e. 28.06.2018 addressed to the same authority i.e. ACIT, Circle 1(1), Bengaluru, and we have already noted that on this date of hearing i.e. on 05.09.2018, Smt. Nandini Das, Addl. CIT, DR, appeared which implies that the notice of hearing issued by the Tribunal has been received by the appellant Revenue and therefore, this argument has no merit that the defect memo was not received by the appellant Revenue. In view of the above discussion, we hold that there is no merit in the MP filed by the Revenue and we dismiss the same. - Decided against revenue.

Issues:
1. Proper service of defect memo by the Tribunal.
2. Opportunity for rectification of defects in the appeal.
3. Failure to appear before the Tribunal by the assessee.
4. Dismissal of the miscellaneous petition by the Tribunal.

Issue 1: Proper service of defect memo by the Tribunal

The Revenue contended that the defect memo issued by the Tribunal on 28.06.2018 was not addressed to the correct authority, as it was directed to ACIT, Circle 1(1), Bengaluru, while the appellant was ACIT, TDS Circle 1(1), Bengaluru. The Revenue argued that this incorrect addressing prevented them from rectifying the defects. However, the Tribunal found that the acknowledgment of notice for the hearing was addressed to the correct authority, and representatives from the Revenue had appeared before the Tribunal on the specified dates. The Tribunal emphasized that it was the primary duty of the appellant to ensure that the appeal filed was free of defects, and the Tribunal's role was to notify any defects, which was done by issuing the defect memo along with the notice of the first hearing date.

Issue 2: Opportunity for rectification of defects in the appeal

The Revenue submitted that only one defect remained in the appeal, concerning the filling of column No.2 of Form No.36. They argued that other defects mentioned in the defect memo had already been rectified before the memo was issued. The Revenue provided evidence in the form of letters and documents submitted to the Tribunal prior to the defect memo, showing that the other defects had been addressed. However, the Tribunal found that the acknowledgment of notice for the hearing was received by the appellant, and representatives from the Revenue had appeared before the Tribunal on multiple occasions, indicating that the defect memo was received and the opportunity for rectification was available.

Issue 3: Failure to appear before the Tribunal by the assessee

Despite being aware of the hearing date, the assessee's authorized representative did not appear before the Tribunal, nor did they request an adjournment. The Tribunal noted that on the last hearing date, the representative had appeared, indicating awareness of the proceedings. Due to the absence of the assessee's representative without any valid reason, the Tribunal proceeded to decide the matter ex parte.

Issue 4: Dismissal of the miscellaneous petition by the Tribunal

After considering the submissions of the Revenue and reviewing the facts of the case, the Tribunal found no merit in the Revenue's argument that the defect memo was not received. The Tribunal emphasized the importance of appellants ensuring their appeals are defect-free and stated that the Tribunal's role was to notify any defects. As the defect memo was issued to the correct authority and acknowledgment of notices was received, the Tribunal dismissed the miscellaneous petition filed by the Revenue.

In conclusion, the Tribunal dismissed the miscellaneous petition filed by the Revenue, emphasizing the importance of appellants ensuring their appeals are free of defects and the Tribunal's role in notifying any deficiencies. The Tribunal found that the defect memo was properly served, the opportunity for rectification was available, and the absence of the assessee's representative without valid reason led to the decision being made ex parte.

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