Rajendra Kumar Mahawar, Balasore V. CIT (A), NFAC, Delhi, Delhi

ITA 106/CTK/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 0355 (ITAT-CUTTACK)
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: DB
• Next Hearing Date: 18-10-2022
• Assessment Year: 2017-2018
• Appeal Filed On: 31-05-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BEFORE AND ARUN KHODPIA, ACCOUNTANT MEMBER Rajendra Kumar Mahawar, Prop. Shiv Charanlal Sitaram, Motiganj Bazar, Balasore PAN/GIR No. (Appellant Per Bench This is an appeal filed by the assessee against the order of the ld CIT(A), National Faceless Ap in Appeal No.IT year 2017-18. 2. Shri Mohit Sheth M.K.Gautam, ld CIT 3. It was submitted granted five opportunities to the assessee. However, the IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE S/SHRI GEORGE MATHAN, JUDICIAL AND ARUN KHODPIA, ACCOUNTANT MEMBER ITA No.106/CTK/2022 Assessment Year : 2017-2018 Rajendra Kumar Mahawar, Prop. Shiv Charanlal Sitaram, Motiganj Bazar, Vs. CIT(A), NFAC, Delhi PAN/GIR No.AGEPM 5703 G (Appellant) .. ( Respondent Assessee by : Shri M.K.Sheth Revenue by : Shri M.K.Gautam, Date of Hearing : 19 /10 Date of Pronouncement : 19/10 O R D E R This is an appeal filed by the assessee against the order of the ld , National Faceless Appeal Centre (NFAC), Delhi ITBA/NFAC/S/250/2020-21/1043047346(1) . Mohit Sheth, ld AR appeared for the assessee a , ld CIT DR appeared for the revenue. It was submitted by ld AR that admittedly, the Assessing Officer had granted five opportunities to the assessee. However, the Page1 | 5 IN THE INCOME TAX APPELLATE TRIBUNAL, JUDICIAL MEMBER AND ARUN KHODPIA, ACCOUNTANT MEMBER 2018 (A), NFAC, Delhi Respondent) M.K.Sheth, AR CIT DR 10/2022 10/2022 This is an appeal filed by the assessee against the order of the ld eal Centre (NFAC), Delhi dated 17.5.2022 (1) for the assessment he assessee and Shri by ld AR that admittedly, the Assessing Officer had granted five opportunities to the assessee. However, the notice had been ITA No.106/CTK/2022 Assessment Year : 2017-2018 Page2 | 5 received by the staff of the assessee and there was some mis- communication, which resulted in non-representation before the Assessing Officer. It was the submission that consequently, the assessment came to be passed u/s.144 of the Act. It was the submission that on appeal, the assessee had filed all the details before the ld CIT(A), for which, the assessee has also submitted the proof of the e-proceedings response acknowledgement in piecemeal vide acknowledgement No.584610361110422, 584611581110422, 584615431110422 and 584617051110422 all dated 11.4.2022. It was the submission that the ld CIT (A) did not consider the submission of the assessee and on the ground that evidences were not produced before the AO, had dismissed the assessee’s appeal. It was the prayer that the issues in the appeal may be restored to the file of the Assessing Officer so that the assessee can produce all the evidences, which have been called for by the AO in the course of assessment. 4. In reply, ld CIT DR submitted that adequate opportunity has been granted by the Assessing Officer and the assessee has not co-operated, consequently, exparte assessment order has been passed. It was the submission that the ld CIT(A) has also recognized this in page 3 para 4 of his order. It was the further submission that the proof of e-proceedings, the details of which before the ld CIT(A) has not been produced. It was the submission that in view of the decision of Hon’ble Supreme Court in the ITA No.106/CTK/2022 Assessment Year : 2017-2018 Page3 | 5 case of Ashokji Chanduji Thakor vs Pr. CIT, (2021) 130 taxmann.com 131 (SC), the Tribunal should not restore the issues to the file of the AO. He vehemently supported the order of the ld CIT(A). 5. We have considered the rival submissions. At the outset, a perusal of the decision of the Hon’ble Supreme Court shows that the Hon’ble Supreme Court has dismissed the SLP against the order of the Hon’ble Gujurat High Court in (2021) 130 taxmann.com 130(Guj) on the ground of delay. However, in the obiter dicta, the Hon’ble Supreme Court has upheld the view of the Hon’ble Gujarat High Court, where in was held that the Tribunal should not set aside an order passed by the ld CIT(A) without cogent reason and if there are no cogent reasons in the order of the Tribunal, the same would be arbitrary and unreasonable. There is no finding in the order of the Hon’ble Supreme Court in Ashokji Chanduji Thakor (supra), where it has been held that the Tribunal cannot set aside the issue in assessment or in appeal to the file of the AO. The requirement of a speaking order with cogent reason is the primary right of a litigant. This principle is what the Hon’ble Supreme Court has reiterated in the obiter dictaby the dismissal of the SLP in the case of Ashokji Chanduji Thakor (supra). 6. A perusal of the order of the ld CIT(A) in para 4.1 of his order shows that the ld CIT(A) has called for a remand report from the Assessing Officer on 19.4.2022 with the date of compliance as 10.5.2022. However, he ITA No.106/CTK/2022 Assessment Year : 2017-2018 Page4 | 5 mentions that no remand report has been received by the office till the date of passing of order on 17.5.2022. The ld CIT(A) further mentions that the assessee had been given opportunity vide notice dated 10.5.2022 to furnish any supporting documents regarding its claim but no such details were produced by the appellant. A perusal of the e-proceedings response acknowledgement referred to above shows that same has been submitted on 11.4.2022. Thus, all evidences were available before the ld CIT(A). Thus, it is noticed that it has been technical breaches on both the sides. It is well known principles of law that when technicality is pitted against substantial justice, substantial justice must prevail. This being so, as it is noticed that the assessee has provided all the details before the ld CIT(A) and as it is recognized fact that the ld CIT(A) has co-terminus powers with that of the Assessing Officer as also recognizing the fact that the AO has not responded to the remand report call for by the ld CIT(A), in the interest of justice and so as to enable the AO to do necessary verification, the issues in the appeal are restored to the file of the AO for re-adjudication after granting the assessee adequate opportunity of being heard. 7. In the result, appeal of the assessee stands partly allowed for statistical purposes. Order dictated and pronounced in the open court on 19/10/2022. Sd/- sd/- (Arun Khodpia) (George Mathan) ACCOUNTANT MEMBER JUDICIAL MEMBER ITA No.106/CTK/2022 Assessment Year : 2017-2018 Page5 | 5 Cuttack; Dated 19/10/2022 B.K.Parida, SPS (OS) Copy of the Order forwarded to : By order Sr.Pvt.secretary ITAT, Cuttack 1. The Appellant : Rajendra Kumar Mahawar, Prop. Shiv Charanlal Sitaram, Motiganj Bazar, Balasore 2. The Respondent: NFAC, Delhi 4. Pr.CIT-, Cuttack 5. DR, ITAT, Cuttack 6. Guard file. //True Copy//