Appeal allowed despite delay for advocate's illness; emphasizes continuous judicial process and right to be heard.

The ITAT Kolkata allowed the appeal, condoning the delay in filing due to the advocate's illness and demise. It set aside the dismissal by the Ld. CIT(A) based on withdrawal, emphasizing that once an appeal is filed, the judicial process must continue. The matter was remanded to the Ld. CIT(A) for fresh disposal, ensuring the assessee's right to be heard and determining the tax liability on merits.

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Issues:
1. Condonation of delay in filing the appeal.
2. Justification of the dismissal of the appeal by the Ld. CIT(A) based on withdrawal by the assessee.

Issue 1 - Condonation of Delay:
The appeal arose from an order by the CIT(A)-XXXII, Kolkata for AY 2008-09. The assessee filed a return of income declaring Rs. 25,95,554/-, which was later scrutinized by the AO resulting in an assessment of Rs. 2,93,796/-. The assessee then sought to withdraw the appeal before the Ld. CIT(A) but later decided to approach the ITAT. The delay of 263 days in filing the appeal was attributed to the illness and subsequent demise of the advocate handling the case. The ITAT, following legal precedent, held that substantial justice must prevail over technicalities, thus condoning the delay and accepting the appeal for consideration on merits.

Issue 2 - Dismissal of Appeal by Ld. CIT(A) on Withdrawal:
The Ld. CIT(A) dismissed the appeal after the assessee, under mistaken advice, sought withdrawal. The Ld. AR argued that despite the withdrawal request, the Ld. CIT(A) should have proceeded on the merits of the case to determine the just tax liability. Legal arguments were presented citing precedents emphasizing that once an appeal is filed, the judicial process must continue, and withdrawal cannot be allowed without due consideration of the merits. The ITAT, in line with legal principles, set aside the matter to the file of the Ld. CIT(A) for a fresh disposal according to law after affording the assessee a reasonable opportunity to be heard. The appeal was allowed for statistical purposes.

In conclusion, the ITAT Kolkata addressed the issues of delay condonation and the dismissal of the appeal by the Ld. CIT(A) based on withdrawal, ensuring that the principles of justice and legal precedents were upheld in the decision-making process.

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