Abhishek Kumar, New Delhi V. ITO, Gurgaon

ITA 2651/DEL/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6798 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 15-11-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 10-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SATISH KR SINGH
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

I.T.A .NO.-2651/DEL/2016 ABHISHEK KUMAR VS ITO IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-II NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-2651/DEL/2016 (ASSESSMENT YEAR-2009-10) ABHISHEK KUMAR, C/O-G.K.KEDIA & CO., 914, NAURANG HOUSE, 21, KASTURBA GANDHI MARG, NEW DELHI-110001. PAN-ALQPK6745F ( APPELLANT) VS ITO, WARD-1(3), GURGAON. (RESPONDENT) ASSESSEE BY SH.SATISH KR. SINGH, CA REVENUE BY SH. NEERAJ KUMAR, SR.DR DATE OF HEARING 15 . 11 .2016 DATE OF PRONOUNCEMENT 01 . 0 2 .201 7 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 17.02.2016 OF CIT(A)-1, GURGAON PERTAIN ING TO 2009-10 ASSESSMENT YEAR ON VARIOUS GROUNDS INCLUDING GROUND NO.1 WHICH READS A S UNDER:- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW ON THE POINT, THE ORDER PASSED BY LD. ASSESSING OFFICER U/S 144 OF TH E INCOME TAX ACT, 1961 DATED 05.12.2011 IS NULL AND VOID AS IT IS NOT PREC EDED BY PROPER SERVICE OF STATUTORY NOTICE U/S 143(2) OF THE INCOME TAX ACT, 1961 AND HONBLE CIT(A) ERRED IN NOT ADJUDICATING THIS GROUND OF APPEAL ON MERITS. 2. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSE SSMENT WAS CONCLUDED AT AN INCOME OF RS.12,77,947/- AS OPPOSED TO THE RETURNED INCOM E OF RS.8,93,320/- BY THE ORDER U/S 143/144 OF THE INCOME TAX ACT, 1961. THE JURISDICT IONAL ISSUE RAISED BY THE ASSESSEE BEFORE THE CIT(A) WAS ADDRESSED VIDE GROUND NO.2 WH ICH READS AS UNDER:- 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW ON THE POINT, LD. ASSESSING OFFICER HAS ERRED IN ACCEPTING FACTUALLY WRONG RETURN FILED BY THE APPELLANT AND DID NOT TAKE THE CORRECT FIGURES WHIL E PROCESSING THE COMPUTATION OF INCOME. 2.1. A PERUSAL OF THE IMPUGNED ORDER PAGE 6 PARA 4 SHOWS THAT IT WAS DISMISSED AS BEING GENERAL AND CONSEQUENTIAL IN NATURE REQUIRING NO AD JUDICATION. THE RELEVANT EXTRACT IS REPRODUCED HEREUNDER:- 4. GROUND NO.1 & 2:-THESE GROUNDS ARE GENERAL AND CONSEQUENTIAL IN NATURE HENCE DOES NOT REQUIRE ANY ADJUDICATION. 2.2. IN THE LIGHT OF THE ABOVE FACTS AND AFTER CONS IDERING THE SUBMISSIONS OF THE PARTIES, I AM OF THE VIEW THAT THE IMPUGNED ORDER CANNOT BE UPHELD. THE JURISDICTIONAL ISSUE CANNOT BE SAID TO BE A GENERAL GROUND REQUIRING NO ADJUDICATION. WHENEVER JURISDICTION OF AN AUTHORITY TO PASS THE ORDER IS PAGE 2 OF 2 I.T.A .NO.-2651/DEL/2016 ABHISHEK KUMAR VS ITO QUESTIONED THEN THE FOUNDATIONAL FACT QUESTIONED IS TO BE FIRST DECIDED AS PER LAW ON FACTS APPLICABLE TO IT. ACCORDINGLY, THE ORDER HAVING BEEN PASSED W ITHOUT DECIDING THE JURISDICTIONAL ISSUE, IS SET ASIDE AND THE ISSUE IS RESTORED BACK TO THE CIT(A) WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REA SONABLE OPPORTUNITY OF BEING HEARD. T HE SAID ORDER WAS PRONOUNCED ON THE DATE OF HEARING ITSELF IN THE OPEN COURT. 3. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 01 ST OF FEBRUARY 2017. SD/- (DIVA SINGH) JUDICIAL MEMBER *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI