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TMI Blog2024 (10) TMI 582X X X X Extracts X X X X X X X X Extracts X X X X ..... and report the result of the same to ld. CIT(A), as is provided u/s 250(4). Thus, ld. CIT(A) has to adjudicate issues arising in the appeal on merits in accordance with law. CIT(A) has issued only one notice of hearing fixing the date of hearing on 30.01.2018. The said notice was not served on the assessee and returned unserved. The assessee is contending that the notice was sent to wrong address and was not sent to the address mentioned in Form No. 35. The return of notice of hearing is also confirmed by ld.CIT(A), and further in communication dated 18.06.2018, the ld. CIT(A) stated that notice will be issued only to the address mentioned in PAN database. First of all there is a clear breach of principles of natural justice as by issuing solitary notice, the ld. CIT(A) dismissed the appeal of the assessee ex-parte in limine without deciding the issues arising in the appeal on merits. Secondly, procedure as contemplated u/s 282 read with Rule 127 was not followed by ld. CIT(A). Once the address for serving of notice of hearing is mentioned in Form No. 35, it was obligatory on the part of ld. CIT(A) to send notice of hearing to said address as is envisaged in first proviso to sub-ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lete, true and correct facts in connection thereto before ld. CIT(A) to enable ld. CIT(A) to conduct aforesaid inquiry, the powers of ld. CIT(A) being co-terminus with the powers of the AO. Thus, keeping in view entire facts and circumstances of the case, we are inclined to set aside the appellate order dated 30.01.2018 passed by ld. CIT(A), and restore the matter back to the file of ld. CIT(A) for denovo adjudication of the appeal of the assessee. CIT(A) is directed to pass orders in compliance with the provisions of section 250(6) of the Act. Needless to say that ld. CIT(A) shall give proper opportunity of being heard to both the assessee as well AO. The assessee is directed to comply with the directions / notices of hearing issued by the Ld. CIT(A) in the appellate proceedings, otherwise Ld. CIT(A) will be within its right to pass an ex parte order on merits, in accordance with law. The appeal of the assessee is allowed for statistical purposes. - Mrs. Beena Pillai, Judicial Member And Shri Ramit Kochar, Accountant Member For the Assessee : Sh. Raghvendra, CA For the Revenue : Ms. Neha Sahay, JCIT DR ORDER PER SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER: This appeal, in ITA No. 1393/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the requisite details. There were two additions made by the AO to the income of the assessee, firstly being on account of non deduction of income tax at source u/s 194I on hire charges to the tune of Rs. 4,27,076/- paid by the assessee to M/s Event Net work, and debited to its P L Account, by invoking provisions of Section 40(a)(ia). The second additions made by the AO was to the tune of Rs. 5,50,820/- on account of excess amount of delivery expenses and salaries and wages, debited to P L Account with reference to earlier years compared to turnover, and 20% stood disallowed by the AO. The AO passed assessment order dated 24.12.2010 u/s 143(3) of the 1961 Act, making aggregate additions to the tune of Rs. 9,77,896/- on the above two counts. 4. The assessee filed first appeal with ld. CIT(A), which stood dismissed by ld. CIT(A) ex-parte in limine for non prosecution by the assessee, vide appellate order dated 30.01.2018, by holding as under: 1. This appeal was filed on 15-02-2011 for the Assessment Year 2008-09 against the order dated 24-12-2010 passed under Section 143(3) of the IT Act by the ACIT, Circle-1(1), Bengaluru, which was served on 17-01-2011. Aggrieved by the said order, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. There is no dispute as to this fact position. It is also the claim of the ld. counsel for the assessee that no notice of hearing was received from the office of the Ld. CIT(A) fixing date of hearing on 30.01.2018, although it is stated that notice of hearing was issued by the Ld. CIT(A) to the assessee to appear for personal hearing before Ld. CIT(A) on 30.01.2018. It is further the submission of the ld. counsel for the assessee that the assessee filed letter dated 7.02.2018 and 15.06.2018 before Ld. CIT(A) which are placed on record in file in Paper Book at Page nos. 93 94, requesting for rectification of appellate order dated 30.01.2018, wherein it is claimed that the notice of hearing was not sent to the address mentioned in the Form No. 35. It is also submitted by ld counsel for the assessee that Ld. CIT(A) vide communication dated 18.06.2018(Paper Book/Page 95) has stated that the Form No. 35 filed by the appellate has not been signed in the form of verification by the Authorized Signatory, and hence the appeal was treated as invalid and not maintainable. The ld. CIT(A) also referred in its communication dated 18.06.2018, that the name of the authorized signature ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0795551(1)) dismissed the second appeal of the assessee filed on 31.05.2019 on the ground that another appeal cannot be filed with ld. CIT(A) as the assessee s first appeal already stood dismissed by his predecessor ld. CIT(A) vide order dated 31.01.2018, and the correct forum to file an appeal against the appellate order dated 31.01.2018 passed by his predecessor ld. CIT(A) is with ITAT, vide order dated 12.02.2024 passed by ld. CIT(A) as under:- 2. The appellant has already filed an appeal against the assessment order under section 143(1) passed by the ACTT, Circle-1 (1) Bangalore on 24- 12- 2010. The CIT (A) has decided/dismissed this appeal in ITA NO 94/CIT(A)1/Br/14-15/AY 2008-09 on 30/01/2018. The appellant cannot file another appeal against the same order before another first appellate authority. If the appellant thinks the order in ITA NO 94/CIT(A)1/Br/14- 15/AY 2008-09 on 30/01/2018 is not correct the appellant has to file an appeal before the ITAT. The CIT(A) cannot recall its order and can take a fresh decision only if the ITAT sets it aside to the CIT(A) for reconsideration. There is no prima-facie mistake in the order that can be rectified u/s154. 5.3 The second set of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee in filing the appeal with the Tribunal against the appellate order passed by ld. CIT(A) on 30.01.2018, but the delay is due to the fact that the assessee was pursuing the alternate/other legal remedies, although mistakenly, under a bona fide belief that the assessee is pursuing the correct remedy as ld. CIT(A) vide letter date 18.06.2018 had instructed to the assessee that it may file fresh appeal with a request for condonation of delay . The assessee has filed an affidavit dated 04.09.2024 which is placed on record in file, in which the aforestated facts are enumerated in brief. The authorities have dismissed the appeal of the assessee as enumerated above, and prayers was made by the assessee to condone the delay in filing this appeal belatedly with the Tribunal on the ground that the assessee was pursuing the alternate/other legal remedies bonafidely on the instruction dated 18.06.2018 issued by ld. CIT(A) to file fresh appeal along with condonation application, although under a mistaken belief. It is further averred in the affidavit that the assessee firm has not taken up its business activities since April, 2018 onwards and has kept its PAN number active only for the pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with a request for condonation of delay . The said letter dated 18.06.2018 issued by ld. CIT(A) is reproduced hereunder :- Office of the Commissioner of Income Tax (Appeals)-1, Bengaluru Room No.751 7th Floor BMTC Bldg. 80 Ft. Road Telephone:25625023 Fax:2562503 6th Block, Koramangala Bangalore-560095 F. No. ITA 94/CIT(A)-1/BR/18-19 Dated:18th June, 2018 To M/s Dagliya Co., Chartered Accountants 1 Block, Unity Buildings J.C. Road, Bengaluru-560002 Sirs, Sub: Income tax appeal-M/s. Manohar Catering, Bengaluru- (PAN:AALFM1212B) Asst. Year 2008-09-reg Ref: Your letter dated 15.06.2018. --------------- It is seen from the record that the Form No. 35 filed by the appellant has not been signed in the form of verification by the Authorised Signatory. Hence, the appeal in Form No. 35 filed in the above case is invalid and the same is not maintainable. Even otherwise, the name of the Authorised Signatory has not been mentioned anywhere in the appeal documents in Form 35. Further, you are informed that as per the new procedure for online appeal proceedings initiated, the notice would only be sent to the address of the appellant as per the PAN and it would not be sent to the Authorised Repre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubt, there are delays and latches on the part of the assessee, and we reprimand and admonish assessee for such careless approach. The assessee has to be vigilant while persuing legal remedy. This second appeal filed by the assessee with ld. CIT(A) on 31.05.2019 was dismissed by ld. CIT(A) on 12.02.2024 as being not maintainable, as already ld. CIT(A) has dismissed the first appeal vide appellate order dated 30.01.2018 and the assessee cannot file appeal again afresh with ld. CIT(A) while the first appeal already stood dismissed by ld. CIT(A) vide orders dated 30.01.2018, and the remedy lies by filing appeal with ITAT against dismissal of the appeal by ld. CIT(A) vide appellate order dated 30.01.2018. Despite dismissal of the appeal by ld. CIT(A) vide appellate order dated 12.02.2014 as not being maintainable, the assessee instead of filing appeal with ITAT against the appellate order dated 30.01.2018 passed by ld. CIT(A), filed appeal with ITAT against dismissal of appeal by ld. CIT(A) vide appellate order dated 12.02.2024. The said appeal was dismissed by ITAT vide orders dated 04.06.2024 in ITA no. 663/Bang/2024. The assessee then filed appeal with ITAT on 24.07.2024 against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing. 2. I have considered the grounds of appeal filed by the appellant and also gone through the assessment order passed by the Assessing officer, the ground of appeal taken by the appellant cannot be disposed without factual verification. The appellant was given an opportunity on 30-01-2018 to appear before me to plead the appeal. The appellant apart from not showing up, it has neither replied to the hearing notice, nor furnished any written submissions. Further, it is seen that the notice issued to the address mentioned on the appeal document by the appellant returned back by the postal authorities with the remark that addressee left and returned to the sender , The appellant has not updated the address on the appeal record. In the circumstances it won't serve any purpose by issuing any further notice in this matter. 3. In view of the same I am of the opinion that the appellant is not interested in pursuing its appeal. The law aids those who are vigilant and those who sleep upon/over their rights. This principle is embodied n well known dictum vigilantibus non Dormantibus Jura Subveniunt which has been followed in the case of CIT Vs. Multiplan India Ltd. reported in 38 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see has vide ground no. 2 and 3 has raised this issue of breach of principles of natural justice, improper service of notice as well not deciding the issues arising in the appeal on merits. 7.5 Further, it is stated by the assessee that the business of the assessee was closed since 2018, but there is no evidence brought on record that the assessee intimated revenue about the closure of its business as is required u/s 176(3). It is for the first time in affidavit dated 04.09.2024 filed before ITAT, this factum of closure of business is brought on record by the assessee. It is stated that PAN number was kept alive as litigation with Income-tax department is continuing, and Nil Returns of income were filed with department. The copies of return of income for assessment year 2019-20 to 2024-25 declaring Nil Income are placed on record. The assessee is a partnership firm. The assessee has to make true, complete and correct disclosure of its status and current state of affairs. The assessee has to come out with complete, correct and true facts and state of affairs as to whether it stood dissolved or it is an existing entity although business stood discountinued. Reference is drawn to prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of this Act, including the provisions relating to the levy of a penalty or any other sum chargeable under any provision of this Act, shall apply, so far as may be, to such assessment. (2) Without prejudice to the generality of the foregoing sub-section, if the 4 [Assessing Officer] or the 5 [Commissioner (Appeals)] in the course of any proceeding under this Act in respect of any such firm as is referred to in that sub-section is satisfied that the firm was guilty of any of the acts specified in Chapter XXI, he may impose or direct the imposition of a penalty in accordance with the provisions of that Chapter. (3) Every person who was at the time of such discontinuance or dissolution a partner of the firm, and the legal representative of any such person who is deceased, shall be jointly and severally liable for the amount of tax, penalty or other sum payable, and all the provisions of this Act, so far as may be, shall apply to any such assessment or imposition of penalty or other sum. (4) Where such discontinuance or dissolution takes place after any proceedings in respect of an assessment year have commenced, the proceedings may be continued against the person referred t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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