Shri Narendra Singh, Lucknow V. ITO-1(2), Lucknow

ITA 228/LKW/2020

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 7601 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 10 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 22-07-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARISH GIDWANI
• Keywords: Business income
• Section: 144; 80C; 143(2); 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH “SMC”, LUCKNOW BEFORE SHRI. A. D. JAIN, VICE PRESIDENT ITA No.228/LKW/2020 Assessment Year: 2011-12 Narendra Singh C-170, Nirala Nagar Lucknow v. The ITO 1(2) Lucknow TAN/PAN:BJPPS7004B (Appellant) (Respondent) Appellant by: Shri Jitendra Kumar Yadav, Advocate Respondent by: Shri Harish Gidwani, D.R. Date of hearing: 13 06 2022 Date of pronouncement: 14 06 2022 O R D E R This is assessee’s appeal against the order of the ld. CIT(A)-1, Lucknow, dated 18.12.2019, for the Assessment Year 2011-12, raising the following grounds of appeal: 1. BECAUSE, on the facts and in the circumstances of the case, the ld. CIT(A), erred in dismissing the appeal of the assessee as the instant Assessment order is itself bad in law; the order issued in the year 2014 is claimed to be served on assessee in the year 2018 [28.8.18] . Non-Service of Assessment Order, within time, itself gives legitimate reason for assessee to believe that the assessment order was not passed within limitation and is hence bad in law and liable, to be set-aside and quashed. Revenue is liable to be put to adduce strict proof and evidence of issuance/ service of assessment order within time. 2. BECAUSE, on the facts and in the circumstances of the case, the ld. CIT(A), erred in dismissing the appeal of the assessee as the instant Assessment order is itself bad in law as the statutory provisions of the Income Tax Act have not Page 2 of 5 been satisfied/observed before initiating the instant proceedings and hence the Assessment Order is liable to be quashed. 3. BECAUSE, on the facts and in the circumstances of the case, the ld. CIT(A), erred in dismissing the appeal of the assessee as the instant Assessment order is itself bad in law as the statutory notice u/s 144 of the Income Tax Act has not been issued/served on assessee before the passing of the Assessment Order and hence the impugned assessment order passed is without jurisdiction and liable to be quashed. 4. BECAUSE, on the facts and in the circumstances of the case, the ld.CIT(A), erred in dismissing the appeal of the assessee as the instant Assessment order is itself bad in law as the statutory notice u/s 143(2) of the Income Tax Act has not been. lawfully issued before the passing of the Assessment Order as also by the jurisdictional Assessing Office and hence the Assessment Order is liable to be quashed The jurisdiction over assessee apparently vests with ITO-1 (5), Lucknow, whereas assessment order has been made by ITO- 1(2), Lucknow hence the order is without jurisdiction and non-est in law. 5. BECAUSE, on the facts and in the circumstances of the case, the ld. Commissioner of Irnome Tax (Appeals) has grossly erred in confirming additions of Rs.11,78,100/-; 14,96,300/-; 5,57,000 /- and disallowance of Rs.12,506/- under 80C made by the assessing officer to the returned income of assessee without appreciating the true and correct facts and circumstances of the case and without assigning any reason to sustain the impugned additions The above money is already accounted as part of business income and results in double taxation. The impugned order is patently non speaking and has not adjudicated the merits of addition made by Assessing Officer.. 6. BECAUSE, on the facts and in the circumstances of the case, the Ld. Commissioner of Income' Tax (Appeals) has grossly erred in confirming an addition of Rs.11,78,100/-; 14,96,300/-; 5,57,000 /-and disallowance of Rs.12,506/- under 80C to the returned income of the assessee without Page 3 of 5 appreciating that the deposits made in the bank account of the assessee are duly explained and do not represent any undisclosed income of the assessee. Hearing in the matter could not be attended due to ill health of assessee. 7. BECAUSE, on the facts and in the circumstances of the case, the impugned order passed by the Ld. Commissioner of Income Tax (Appeals) is bad in law and on facts as, the Ld. CIT (A) has failed to take into account,. the reasons and that the explanations, furnished by the assessee through the statement of facts, etc. which constrained, representation of the assessee before the Assessing Officer. The impugned order has been passed without adjudication of the contentions set-forth by the assessee. 8. BECAUSE, on the facts and in the circumstances of the case, the impugned order passed by the Ld. Commissioner of Income Tax (Appeals) is bad in law as no due and proper opportunity of hearing in the matter has been afforded. The notices of hearing in the matter have not been received by the assessee. It is remarkable to notice that apparently the orders are addressed to 2 separate addresses; none of which is mentioned in Form No. 35. 9. BECAUSE, on the facts and in the circumstances of the case, the averments contained in statement of fact, filed by the assessee, have not been found to be false or untrue or has in any other manner been contradicted by the Assessing Officer/CIT(A). Hence the averments made therein, having remained, un-refuted, deserve acceptance in the light of Evidence Act and other judicial pronouncements and the addition is liable to be deleted/fresh hearing be granted to assessee. 10. Because the order of the Ld. Assessing Officer is not based on correct facts and proper appreciation of law and is liable to be cancelled. 2. There is a delay of 128 days in the filing of the appeal. As per the application for condonation of delay, the order of the ld. CIT(A), dated 18.12.2019 was received by the assessee on Page 4 of 5 17.1.2020; the limitation for filing the appeal was 17.3.2020; the appeal got to be filed on 23.7.2020; due to the onslaught of the Covid Pandemic, from 15.3.2020, the Hon'ble Supreme Court extended the limitation for filing the appeals, etc., as per their Lordships’ order in Suo Moto case No.3 of 2020. 3. In view of the aforesaid contents of the application for condonation of delay, finding the reason for delay to be sufficient, I condone the delay and admit the appeal for hearing. 4. Arguing Ground no.8 first, the ld. Counsel for the assessee has contended that the ld. CIT(A) has erred in dismissing the appeal ex-parte qua the assessee, without providing due and adequate opportunity of hearing; and that the notices of hearing had not been received by the assessee. It has been submitted that the matter may be remitted to the ld. CIT(A) to decide the appeal on merit. 5. The ld. D.R., on the other hand, has placed reliance on the order of the ld. CIT(A). 6. Heard. I find that the CIT(A) has dismissed the appeal without providing proper opportunity to the assessee. Moreover, he has not decided the appeal after discussing in detail, his reasons for agreeing with the assessment order. In this view of the matter, another opportunity of hearing requires to be given to the assessee to represent his case fully before the ld. CIT(A). Even otherwise, it is trite [‘S. Velu Palandar Vs. DCIT’ 83 ITR 683 (Mad.) and ‘Ms. Swati Pawa vs. Dy. CIT’, 175 ITD 622 (Del)] and incumbent on the ld. CIT(A) to decide an appeal on merit even in the absence of any representation before them. 7. In view of the above, the matter is remitted to the file of the ld. CIT(A) to be decided afresh on merit, in accordance with law, Page 5 of 5 on affording due and adequate opportunity of hearing to the assessee, preferably within two months from the date of receipt of this order. The assessee, no doubt, shall cooperate in the fresh proceedings before the ld. CIT(A). All pleas available under the law shall remain so available to the assessee. Ordered accordingly. 8. In the result, for statistical purposes, the appeal is treated as allowed. Order pronounced in the open Court on 14/06/2022. SD/- [A. D. JAIN] VICE PRESIDENT DATED:14/06/2022 JJ: Copy forwarded to: 1. Appellant 2. Respondent 3. CIT(A) 4. CIT 5. DR By order Assistant Registrar