SHRI ONKAR MAL , SIKAR V. INCOME TAX OFFICER, WARD-3, SIKAR

ITA 1262/JPR/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8716 (ITAT-JAIPUR)
• Duration Of Justice: 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 11-03-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 06-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MAHLA JCIT DHK
• Keywords: Reopening of assessment; Set aside
• Section: 143(3); 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES B, JAIPUR JH JES'K LH 'KEKZ] YS[KK LNL; ,OA JH FOT; IKY JKO] U;KF;D LNL; DS LE{K BEFORE: SHRI RAMESH C SHARMA, AM & SHRI VIJAY PAL RAO, JM VK;DJ VIHY LA -@ ITA NO. 1262/JP/2018 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2009-10 SHRI ONKAR MAL, S/O- SHRI NANU RAM, NEW VILLAGE-DURGAPUR, VPO-PIPRALI, SIKAR. CUKE VS. I.T.O., WARD-3, SIKAR. LFKK;H YS[KK LA -@THVKBZVKJ LA-@ PAN/GIR NO.: ACOPM 8402 A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI MAHENDRA GARGIEYA (ADV) JKTLO DH VKSJ LS @ REVENUE BY : SHRI A.K. MAHLA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 08/04/2019 MN?KKS 'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 08/04/2019 VKNS'K@ ORDER PER: R.C. SHARMA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE EX PARTE ORDER OF LD.CIT(A)-3, JAIPUR DATED 10/09/2018 FOR THE A.Y. 2009-10 IN THE MATTER OF ORDER PASSED U/S 143(3) READ WITH SECTION 148 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. IN THIS APPEAL, THE ASSESSEE IS AGGRIEVED FOR REOPENING OF ASSESSMENT AS WELL AS ADDITION OF RS. 5,22,560/- MADE U/S 69 OF THE ACT. ITA 1262/JP/2018_ SHRI ONKAR MAL VS. ITO 2 3. AT THE OUTSET, THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE LD. CIT(A) HAS PASSED EX PARTE ORDER WITHOUT GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. HE CONTENDED THAT NO NOTICE WAS SERVED AT THE ADDRESS GIVEN BY THE ASSESSEE IN FORM NO. 35 FILED BEFORE THE LD. CIT(A). AN AFFIDAVIT TO THIS EFFECT WAS ALSO PLACED ON RECORD. 4. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. FROM PERUSAL OF THE ORDER OF THE LD. CIT(A), IT IS CLEAR THAT HE HAS NOT DECIDED THE ISSUE ON MERIT AND HAD JUST UPHELD THE ORDER OF THE A.O. ON THE PLEA THAT THE APPELLATE AUTHORITY CANNOT SUBSTITUTE ITS OWN JUDGMENT IN PLACE OF THE JUDGMENT OF THE A.O. UNLESS IT IS SHOWN THAT THE JUDGMENT OF THE A.O. WAS BIASED, IRRATIONAL, VINDICTIVE OR CAPRICIOUS . AS PER PROVISIONS OF SECTION 250(6) OF THE ACT, THE LD. CIT(A) HAS TO PASS ORDER IN WRITING GIVING REASONS FOR HIS CONCLUSION. HOWEVER, THE ORDER PASSED BY THE LD. CIT(A) ARE NOT IN TERMS OF PROVISIONS OF SECTION 250(6) OF THE ACT. THEREFORE, IN THE SUBSTANTIAL INTEREST OF JUSTICE, WE SET ASIDE THE EX PARTE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF THE LD. CIT(A) FOR DECIDING THE ISSUE AFRESH AFTER PROVIDING REASONABLE AND EFFECTIVE HEARING TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO APPEAR BEFORE THE LD. CIT(A) WITHIN A PERIOD OF TWO MONTHS FROM THE DATE OF RECEIPT OF THIS ORDER. WE ORDER ACCORDINGLY. ITA 1262/JP/2018_ SHRI ONKAR MAL VS. ITO 3 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 08 TH APRIL, 2019. SD/- SD/- FOT; IKY JKO JES'K LH 'KEKZ (VIJAY PAL RAO) (RAMESH C SHARMA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 08 TH APRIL, 2019 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI ONKAR MAL, SIKAR. 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O., WARD-3, SIKAR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 1262/JP/2018) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR