ITO, WARD- 2(4), NOIDA V. PRAVEEN KUMAR, GAUTAM BUDH NAGAR

ITA 105/DEL/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6723 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 04-01-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Opportunity of being heard
• Section: 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES SMC : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA.NOS.105/DEL./2018 ASSESSMENT YEAR 2009-2010 THE INCOME TAX OFFICER, WARD-2(4), ROOM NO.406, 4 TH FLOOR, AAYAKAR BHAWAN, A-2D, SECTOR-24, NOIDA 201 301 (U.P.) VS SHRI PRAVEEN KUMAR, S/O. SHRI LAKHPAT ROY, VILLAGE : DAYANTPUR, TEHSIL JEWAR, GAUTAM BUDH NAGAR. PAN AJAPK0022A (APP ELLANT ) (RESPONDENT) FOR REVENUE : SHRI S.L. ANURAGI, SR. D.R. FOR ASSESSEE : -NONE- DATE OF HEARING : 09 .0 7 .2018 DATE OF PRONOUNCEMENT : 09 .0 7 .2018 ORDER THIS APPEAL BY REVENUE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-1, NOIDA, DATED 30.06.2017, FOR THE A.Y. 2009-2010. 2. I HAVE HEARD THE LD. D.R. AND PERUSED THE ORDER S OF THE AUTHORITIES BELOW. HOWEVER, NONE APPEARED ON BE HALF OF THE ASSESSEE. 2 ITA.NO.105/DEL./2018 SHRI PRAVEEN KUMAR, GAUTAM BUDH NAGAR. 3. THE LD. CIT(A) NOTED IN THE IMPUGNED ORDER THAT A.O. PASSED THE ASSESSMENT ORDER WITHOUT ASSUMING JURISD ICTION UNDER SECTION 143(2) OF THE I.T. ACT. THEREFORE, NO VALID ASSESSMENT CAN BE FRAMED. IMPUGNED ORDER WAS DIRECT ED TO BE DELETED BEING BAD IN LAW. HOWEVER, A.O. WAS DIRECTE D THAT BENEFIT OF PROTECTION UNDER SECTION 150 COULD BE TA KEN. A.O. WAS ACCORDINGLY DIRECTED TO PROCEED. 4. THE LD. D.R. SUBMITTED THAT IN THIS CASE SINCE NO RETURN OF INCOME HAVE BEEN FILED BY THE ASSESSEE, T HEREFORE, THERE IS NO REASON TO COMPLY WITH THE PROVISIONS OF SECTION 143(2) OF THE I.T. ACT WHICH IS IGNORED BY THE LD. CIT(A) AND THAT ON IDENTICAL ISSUE THE TRIBUNAL IN THE CASE OF ITO, WARD-1(1), NOIDA VS. ASHOO SINGHAL, GURGAON IN ITA.NO.7821/DEL ./2017 DATED 02.05.2018, RESTORED THE MATTER TO THE FILE O F LD. CIT(A). THE ORDER IS REPRODUCED AS UNDER : 4. I HAVE GONE THROUGH THE ORDERS OF THE REVENUE AUTHORITIES AND THE GROUND RAISED BY THE DEPARTMENT AND ESPECIALLY THE IMPUGNED ORDER DATED 30.6.2017 PASSE D BY THE LD. CIT(A)-I, NOIDA. FOR THE SAKE CONVENIENCE, I AM 3 ITA.NO.105/DEL./2018 SHRI PRAVEEN KUMAR, GAUTAM BUDH NAGAR. REPRODUCING HEREWITH THE CONTENTS OF THE IMPUGNED ORDER OF THE LD. CIT(A) AS UNDER:- 1. THE PRESENT APPEAL IS FILED BY THE APPELLANT AGAINST AN ASSESSMENT ORDER DATED 30.11.2016 PASSED BY THE AO U/S. 144 /147 OF THE I.T. ACT, 1961 FOR AY 2009-10 ON A TOTAL INCOME OF RS. 38.53.500/- AGAINST NO RETURN OF INCOME FILED BY THE ASSESSEE. AGGRIEVED BY THE SAME THE APPELLANT HAS PREFERRED APPEAL. 2. MS. RITIKA CHHABARA, CA APPEARED AND CANVASSED THE CASE OF THE APPELLANT. 3. THE IMPUGNED ASSESSMENT ORDER HAS BEEN FRAMED WITHOUT ASSUMING JURISDICTION U/S. 143(2) OF I.T. ACT, 1961 AND IS THEREFORE BAD IN LAW. AS ON THE DATE OF FRAMING OF THE UNLAWFUL ASSESSMENT ORDER THE LD. AO WAS OTHERWISE COMPETENT TO FRAME THE ASSESSMENT ORDER IN THE CASE OF THE APPELLANT AFTER ADHERING TO THE CORRECT PRESCRIBED PROCEDURE, THE CASE OF THE REVENUE IS PROTECTED UNDER SECTION 150 OF I.T. ACT, 1961. IN VIEW OF THE IMPUGNED ASSESSMENT ORDER IS THEREFORE DELETED AND THE LD. AO IS DIRECTED TO REFRAME THE 4 ITA.NO.105/DEL./2018 SHRI PRAVEEN KUMAR, GAUTAM BUDH NAGAR. ASSESSMENT ORDER AFTER FOLLOWING THE CORRECT PRESCRIBED PROCEDURE AND IN TERMS OF THE JURISDICTION CONFERRED UNDER SECTION 150 OF I.T. ACT, 1961. THE APPEAL OF THE APPELLANT IS DISPOSED IN TERMS OF THE ABOVE. 5. I HAVE ALSO GONE THROUGH THE ASSESSMENT ORDER DA TED 30.11.2016 PASSED U/S. 147/144 OF THE I.T. ACT, 196 1 AND I AM OF THE VIEW THAT AO HAS PASSED THE ORDER U/S. 144 OF THE ACT WITHOUT GIVING SUFFICIENT OPPORTUNITY TO TH E ASSESSEE AND THE LD. CIT(A) HAS ALSO PASSED A NON-SPEAKING O RDER WHICH I HAVE REPRODUCED AS ABOVE, WHICH IS NOT SUST AINABLE IN THE EYES OF LAW. THEREFORE, IN THE INTEREST OF J USTICE, I AM SETTING ASIDE THE IMPUGNED ORDER DATED 30.6.2017 PASSED BY THE LD. CIT(A) WITH THE DIRECTION TO THE LD. CIT (A) TO PASS A SPEAKING ORDER, AFTER GOING THROUGH THE ASSESSMEN T RECORDS AND GIVE ADEQUATE OPPORTUNITY OF BEING HEAR D TO THE ASSESSEE. 6. IN THE RESULT, THE REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 5 ITA.NO.105/DEL./2018 SHRI PRAVEEN KUMAR, GAUTAM BUDH NAGAR. 5. CONSIDERING THE SUBMISSIONS OF THE LD. D.R. IN THE LIGHT OF ORDER OF THE TRIBUNAL IN IDENTICAL CASE OF SHRI ASHOO SINGHAL, GURGAON (SUPRA), I AM OF THE VIEW THAT NO RETURN OF INCOME HAVE BEEN FILED UNDER SECTION 148 OF THE I.T . ACT, THEREFORE, THE MATTER REQUIRES RE-CONSIDERATION AT THE LEVEL OF THE LD. CIT(A). I, ACCORDINGLY, SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THE APPEAL OF ASSESSEE TO HIS FIL E WITH A DIRECTION TO RE-DECIDE THE APPEAL OF ASSESSEE ON ME RIT, BY GIVING REASONABLE, SUFFICIENT OPPORTUNITY OF BEING HEARD T O THE ASSESSEE AND THE A.O. 6. IN THE RESULT, APPEAL OF REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DELHI, DATED 09 TH JULY, 2018 VBP/- 6 ITA.NO.105/DEL./2018 SHRI PRAVEEN KUMAR, GAUTAM BUDH NAGAR. COPY TO 1. THE APP ELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT SMC BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASSISTANT REGISTRAR : ITAT DELHI BENCHES : DELHI.