Jayveer, Noida V. ITO, Ward- 1(4), Noida

ITA 1478/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5379 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 22-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K R MANJAI
• Keywords: Opportunity of being heard; Set aside
• Section: 143(2)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI SMC BENCH, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 1478/DEL/2019 [ASSESSMENT YEAR: 2008-09] JAYVEER VS. ITO, WARD 1(4), C/O SH. K.R. MANJANI, ADVOCATE NOIDA K-98, 1 ST FLOOR, LAJPAT NAGAR, PART-II, NEW DELHI 110 024 (PAN: BDCPJ1173P) [APPELLANT] [RESPONDENT] ASSESSEE BY : SHRI K.R. MANJAI, ADVOCATE REVENUE BY : SHRI PRADEEP SINGH GAUTAM, SR . DR. ORDER THIS APPEAL IS FILED BY THE ASSESSEE IS AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX [APPEALS-I], NOIDA DATED 28.2.2019 PERTAINING TO ASSESSMENT YEAR 2008-09 ON THE FOLLOWING GROUNDS:- 1. LD. CIT(A) HAVE ERRED ON FACST AS WELL AS IN LAW I N HOLDING THAT NOTICE U/S. 143(2) COULD BE ISSUED WHERE O RE TURN IS FILED BY ASSESSEE. THIS IS AGAINST PROVISION OF THE 143(2) ITSELF. 2. SCOPE OF DECIDING THE APPEAL WAS LIMITED BECAUSE T HE MATTER WAS SET ASIDE BY HONBLE TRIBUNAL. IN SUCH CASES CIT(A) HAS TO GIVE DECISION ONLY ON THE GROUNDS IN VOLVED AND RAISED BEFORE TRIBUNAL. HE IS NOT EMPOWERED TO DELIBERATE ON NEW GROUND WHEREAS LD. CIT(A) HAS DISMISSED THE APPEAL ON NON-PAYMENT OF TAX. 2 NON- PAYMENT OF NOTIONAL ADVANCE TAX WHERE NO RETUR N IS FILED EVEN THOUGH THERE IS NO SUCH PROVISION IN TH E ACT AND TAXATION STATUTE IS TO BE CONSTRUCTED STRICTLY. SEC ONDLY CIT(A) DISCUSSION OF SERVING NOTICE U/S. 143(2) EVE N THROUGH NO RETURNS WAS FILED IS LEGALLY INCORRECT A D IRRELEVANT. 3. LD. CIT(A) HAVE ERRED ON FACTS AS WELL AS IN LAW I N NOT DEALING, DELIBERATING AND DECIDING GROUNDS RAISED IN TRIBUNAL ORDER DATED 13.12.2017. IT IS THEREFORE PRAYED THAT APPEAL MAY KINDLY BE AL LOWED WITH COST, DISMISSAL OF APPEAL BEING AGAINST LAW. 2. AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSES SEE STATED THAT LD. CIT(A) HAS PASSED THE EXPARTE IMPUGNED ORDER WI THOUT PROVIDING SUFFICIENT OPPORTUNITY TO THE ASSESSEE. H E REQUESTED THAT THE ISSUES IN DISPUTE MAY BE SET ASIDE TO THE LD. CIT(A) TO DECIDE THE SAME AFRESH, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. ON THE CONTRARY, LD. DR RELIED UPON THE IMPUGNE D ORDER. 4. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW. I AM OF THE VIEW THAT LD. CIT(A) HAS NOT GIVEN SUFFICIENT OPPORTUNITY TO THE ASSESSEE, THEREFORE, IN THE INTEREST OF JUSTICE I AM SETTING ASIDE THE ISSUES IN DISPUTE TO THE LD. CIT(A) TO DECIDE THE SAME AFRESH AFTER GIVING ADEQUATE OPPORT UNITY OF BEING HERD TO THE ASSESSEE. 4.1 KEEPING IN VIEW OF THE NON-COOPERATION OF THE A SSESSEE, I AM DIRECTING THE ASSESSEE THROUGH HIS COUNSEL TO APPEA R BEFORE THE LD. CIT(A) ON 29.04.2020 AT 10.00 AM FOR HEARING. THERE IS NO NEED 3 TO ISSUE THE NOTICE BY THE LD. CIT(A) TO THE ASSESS EE, SINCE THIS ORDER HAS ALREADY BEEN PRONOUNCED IN THE OPEN COURT . 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED ON 19.02.2020. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATED:19-02-2020 SRB COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) ASST. REGISTRAR, 5. DR ITAT, NEW DELHI 4