M/s. Abhinav Dwivedi, Ghaziabad V. ITO, Ghaziabad

ITA 2379/DEL/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7959 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 17-03-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 22-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K JAISWAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SH.PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A .NO.-2379/DE L/2015 (ASSESSMENT YEAR-2010-11) ABHINAV DWIVEDI, C/O-S.K.PANDEY, ADVOCATE, SF-204, HANSH PLAZA, AMBEDKAR ROAD, GHAZIABAD. PAN-ABAPD5444N (APPELLANT) VS ITO, WARD-1(5), GHAZIABAD (RESPONDENT) A SSESSEE BY NONE R EVENUE BY SH. K.K.JAISWAL, SR. DR ORDER PER DIVA SINGH, JM THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 22.01.2015 OF CIT(A), GHAZIABAD PER TAINING TO 201011 ASSESSMENT YEAR. 2. NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE AT THE TIME OF HEARING. HOWEVER CONSIDERING THE MATERIAL AVAILABLE ON RECORD AND TH E SUBMISSIONS OF THE LD. SR.DR IT WAS CONSIDERED APPROPRIATE TO PROCEED WITH THE PRES ENT APPEAL EX-PARTE QUA THE ASSESSEE APPELLANT ON MERIT. THE RECORD SHOWS THAT THE LD. CIT(A), GHAZIABAD HAS PASSED AN EX-PARTE ORDER, IN VIEW OF THE FACT THAT ON THE VARIOUS DATES THE APPEAL WAS FIXED FOR HEARING, NO ONE WAS PRESENT AND THE APPEA L WAS ADJOURNED. IN THESE CIRCUMSTANCES, AFTER HAVING AFFORDED VARIOUS OPPORT UNITIES FINALLY THE LD. CIT(A) DATE OF HEARING 17.03.2016 DATE OF PRONOUNCEMENT 04.05.2016 I.T.A .NO.-2379/DEL/2015 PAGE 2 OF 3 DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE, REL YING UPON THE DECISION IN THE CASES OF CIT VS B.N. BHATTACHARGEE & ANOTHER 118 ITR 461 AND ESTATE OF LATE TUKOJI RAO HOLKER VS CWT 223 IR 480 (MP). ON CONSIDERATION OF THE IMPUGNED ORDER, WE FIND THAT THE STATUTORY MANDATE OF THE ACT HAS NOT BEEN FOLLOWED BY THE LD. CIT(A) IN DECIDING THE APPEAL. SECTION 250(6) OF THE INCOME TAX ACT, 1961 MANDATES THAT THE CIT(A) SHALL PASS A SPEAKING ORDER, THE SPECIFIC SU B-SECTION IS REPRODUCED HEREUNDER FOR READY-REFERENCE:- 250. (1) . (2) (3) (4) . (5) . (6) THE ORDER OF THE COMMISSIONER (APPEALS) DISPOS ING OF THE APPEAL SHALL BE IN WRITING AND SHALL STATE THE POINTS FOR DETERMINATIO N, THE DECISION THEREON AND THE REASON FOR THE DECISION. (6A)............................................... .................... 3. THE SPECIFIC PROVISION REQUIRES THE FIRST APPE LLATE AUTHORITY TO SET OUT POINTS FOR DETERMINATION AND THE DECISION THEREON SUPPORT ED BY REASONS FOR ARRIVING AT A CONCLUSION. THE SAID MANDATORY EXERCISE IN THE AFO RESAID PROVISION IN THE PECULIAR FACTS OF THE PRESENT CASE IS FOUND TO BE NOT FULFIL LED. ACCORDINGLY HOLDING THE IMPUGNED ORDER VIOLATIVE OF THE STATUTORY MANDATE I T IS SET ASIDE BACK TO THE FILE OF THE CIT(A) TO MAKE GOOD THE STATUTORY DEFICIT. NEEDLES S TO SAY THAT BEFORE PASSING THE ORDER, A REASONABLE OPPORTUNITY SHALL BE PROVIDED T O THE ASSESSEE. WHILE SO DIRECTING IT IS HOPED THAT THE OPPORTUNITY SO PROVIDED IS NOT ABUSED BY THE ASSESSEE AND IS UTILIZED IN GOOD FAITH AS FAILING WHICH THE LD. CIT (A) WOULD BE AT LIBERTY TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. I.T.A .NO.-2379/DEL/2015 PAGE 3 OF 3 4. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 04 OF MAY, 2016. SD/- SD/- (PRASHANT MAHARISHI) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 04/05/2016 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI