IN INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B , NEW DELHI BEFORE MS. SUCHITRA KAMBLE, JUDICIAL MEMBER AND SH. PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA No.5215/Del/2016 Assessment Year : 2009-10 M/s. Ester Industries Limited, ACIT, Block-A, Plot No.11, Circle-8(2), Infocity-I, Sector-33 & 34, Vs. New Delhi. Gurgaon-122001. PAN : AAACE0119E (Appellant) (Respondent) Appellant by Sh. Prem Sharma, AR Respondent by Ms. Nidhi Srivastava, CIT DR Date of hearing 05.08.2019 Date of pronouncement 21.08.2019 ORDER PER S.KAMBLE, J.M: This appeal by assessee is directed against order dated 08.09.2016 passed by CIT(A)-37, New Delhi in relation to assessment year 2009-10 on following grounds:- (a) On facts and in circumstances of case, CIT(A) has erred, both on facts and in law, in passing impugned exparte order dated 9.9.2016 dismissing appeal as not maintainable and he should have allowed appellant adequate and reasonable opportunity to remove defect. In appeal memo which is curable and should have thereafter heard and decided appeal on merits on all grounds and issues raised before him and failure to do so, has vitiated impugned order. (b) On facts and in circumstances of case, CIT(A) has erred, in not calling for records relating to original assessment and re-assessment of appellant from AO and has failed to consider fairly and objectively ITA No.5215/Del/2016 Assessment Year : 2009-10 each one of grounds pleaded by appellant although they are mentioned in para 2 of order but none of them had been dealt with or decided arid in view of impugned order being exparte and there was valid and reasonable cause for appellant seeking time on 9.9.2016, denial of effective opportunity to appellant and refusal to consider appeal for decision on merits have led to grave injustice to appellant for which impugned order be vacated. (c) records having been received only on 8.8.2016, hearing notice dated 24.8.2016 sent to wrong/old address of appellant instead of address given on appeal memo had led to delay in receipt of notice and attending proceedings for which appeal ought not to have been dismissed. (d) appellant had acted bona fide and curable defect in appeal memo has been cured by filing revised appeal memo along with application for recall of exparte order dated 9.9.2016 filed before CIT(A) and in view of same, it is prayed that this Hon'ble Tribunal may be pleased to set aside impugned exparte order passed by CIT(A) and direct appeal to be decided by him correctly in accordance with law and on merits in respect of all grounds raised by appellant after granting effective opportunity of personal hearing to appellant and, after getting complete records of Assessing Officer relating to original assessment as well as re-assessment as even re-assessment order was exparte made perversely by A O. 2. M/s. Ester Industries Ltd. is Public Limited Company incorporated under Companies Act, 1956, which was regularly assessed to Income-tax. For assessment year 2009-10, regular assessment u/s. 143(3) was made by Assessing Officer vide order dated 18.11.2011 by which book profits of assessee were enhanced from Rs.50,36,29,047/- declared by assessee to Rs.51,24,47,405/-. Page | 2 ITA No.5215/Del/2016 Assessment Year : 2009-10 3. Being aggrieved by assessment order, assessee filed appeal before CIT(A).The CIT(A) passed ex-parte order thereby partly allowing appeal of assessee. 4. Ld. AR submitted that CIT(A) has not granted adequate and reasonable opportunity to remove defects in appeal memo which is curable. Ld.AR further submitted that hearing notice dated 24.08.2016 was also sent to wrong/old address of assessee instead of address given in appeal memo, which led to delay in receipt of notice and attending proceedings for which appeal ought not to have been dismissed. Therefore, ld. AR submitted that matter may be remanded back to file of CIT(A) for deciding appeal on merits by giving proper opportunity as per principles of natural justice. 5. Ld. DR relied upon assessment order and order of CIT(A). Ld. DR further submitted that proper opportunity was granted by CIT(A) to remove defect, which was not availed by assessee at relevant time. 6. We have heard both parties and perused all relevant material available on record. CIT(A) has dismissed appeal of assessee on ground that defect was not removed in memorandum of appeal. From records, it can be seen that notice was also not properly served to assessee at address mentioned in Form-35. Therefore, in interest of justice, it will be appropriate to remand back this matter to file of CIT(A) and matter may be decided on merit. Needless to say that assessee will remove defect in appeal, i.e., rectify Form 35 before CIT(A) within period of 30 days from receipt of this order. assessee be given opportunity of hearing by following principles of natural Page | 3 ITA No.5215/Del/2016 Assessment Year : 2009-10 justice. Accordingly, appeal of assessee is partly allowed for statistical purposes. 7. In result, appeal filed by assessee is partly allowed for statistical purposes. Order pronounced in open court on 21st day of August, 2019. Sd/- Sd/- (PRASHANT MAHARISHI) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 21.08.2019 * Amit Kumar* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI Page | 4 Ester Industries Limited v. ACIT, Circle- 8(2), New Delhi