Ex Parte order can not passed by CIT (A) if grounds of appeal were not attached with Form 35 due to technical reasons

ORDER

P C : Affidavit-in-reply of respondent No. 2, tendered before the Court, is taken on record.

2. 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 all and the decision was rendered ex-parte.

3. It is stated that the petitioner had filed his memo of appeal in Form 35, however the grounds of appeal were not attached at the time of filing of Form 35 on account of some technical reasons. 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 filed its online submissions on 27th January 2022 and 12th September 2022, respectively.

4. 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.

5. 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.

6. We fail to understand as to how it is possible that submissions once uploaded, were not visible to the appellate authority. 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 filing 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 appeal proceedings.

7. 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.

8. 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.

9. The petition is disposed of.