Section 246A, Rule 45(2) – Once the appeal filed by the assessee if found to be legally invalid and dismissed as such, the assessee can file another appeal which has to be considered along with condonation application, and if admitted has to be decided on merit.

Aggrieved by the exparte order dated 31-12-2008 passed by the Assessing Officer (AO) u/s 144 of the Act the assessee filed an appeal to CIT(A). The memorandum of appeal was signed by CA, Shri S. U. Radhakrishnani, as authorised representative. Since the assessee neither submitted any valid power of attorney nor was there any explanation as to why the appeal was not signed by the assessee, CIT(A) vide order dated 11-10-2010 dismissed the appeal as invalid. Thereafter, the assessee filed a fresh appeal on 7-3-2011 along with application for condonation of delay. The CIT(A) in his order dated 22-12-2011 held that the appeal filed by the assessee against the assessment order had already been adjudicated by CIT(A) and dismissed. There was no provision for filing of an appeal when the first appeal had been dismissed. The appeal was also filed beyond the time limit. CIT(A) therefore dismissed the appeal in limine. Aggrieved, the assessee preferred an appeal to the Tribunal.

Held:

Once the appeal was treated as invalid, the same became non-est. The assessee had the right to file another appeal which of course has to be considered as delayed appeal and, in case delay is condoned, the appeal has to be decided on merit. The Tribunal held that the view taken by CIT(A) does not represent the correct view and therefore, has to be rejected. Once the appeal filed by the assessee is found to be legally invalid and dismissed as such, the assessee can file another appeal which has to be considered along with condonation application and, if admitted after due consideration of condonation application, it has to be decided on merit.

The Tribunal restored the matter to CIT(A) for deciding the same afresh after necessary examination in the light of observations made by the Tribunal.

As regards the first appeal which was not signed by the assessee, disposal by CIT(A) was considered as just and fair and the same was upheld.