Jaipal, Ghaziabad V. ITO, Ward- 1(5), Noida

ITA 3096/DEL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6365 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 02-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAGDISH SINGH
• Assessee Lawyers: ASHOK KUMAR SHARMA
• Keywords: Set aside

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D, NEW DELHI , . . , , BEFORE MS. SUSHMA CHOWLA, VICE PRESIDENT & SH. N.K. BILLAIYA, ACCOUNTANT MEMBER . .. . / ITA NO.3096/DEL/2018 / ASSESSMENT YEAR: 2009-10 SHRI JAIPAL, KUMAR PRAMOD & CO. CA, 101, HANS PLAZA, AMBEDKAR ROAD, GHAZIABAD-201001 PAN-BHKPJ8930Q . ......... /APPELLANT VS ITO, WARD-1(5), NOIDA . / RESPONDENT / APPELLANT BY : SH. ASHOK KUMAR SHARMA, AR / RESPONDENT BY : SH. JAGDISH SINGH, SR. DR / DATE OF HEARING: 14.01.2020 / DATE OF PRONOUNCEMENT: 29 .01.2020 / ORDER PER SUSHMA CHOWLA, VP THE APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORD ER OF CIT(A)-I, NOIDA, DATED 31/01/2018, RELATING TO ASSESSMENT YEAR 2009- 10. 2. IN THIS APPEAL, THE ASSESSEE IS AGGRIEVED BY THE ORDER OF CIT(A) FOR DECIDING THE APPEAL EX-PARTE QUA THE ASSESSEE AND WITHOUT GOING INTO THE MERITS OF THE ADDITION. 2 ITA NO.3096/DEL/2018 ASSESSMENT YEAR: 2009-10 3. THE PRESENT APPEAL IS FILED AFTER THE DELAY OF F IVE DAYS BEFORE THE TRIBUNAL. THE ASSESSEE HAS EXPLAINED THE DELAY AND WE CONDONE THE SAME AND PROCEED TO DECIDE THE APPEAL AFTER HEARING BOTH THE REPRESENTATIVES. 4. THE LEARNED AR FOR THE ASSESSEE POINTED OUT THAT THE CIT(A) HAS PASSED THE EX-PARTE ORDER WITHOUT ALLOWING SUFFICIENT OPPORTUNITY OF H EARING AND WITHOUT GOING INTO THE MERITS OF THE CASE. 5. THE LEARNED DR FOR THE REVENUE ON THE OTHER HAND POINTED OUT THAT SUFFICIENT OPPORTUNITY HAS BEEN AFFORDED TO THE ASS ESSEE. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. UNDER THE PROVISIONS OF SECTION 250(6) OF THE INCOME TAX ACT, 1961 (IN SHORT ACT), IT IS INCUMBENT UPON THE CIT(A) TO DECIDE THE APPEA L AFTER HEARING THE PARTIES AND STATE THE POINTS FOR DETERMINATION, THE DECISION THEREON AND ALSO THE REASONS FOR THE DECISION. WHILE DECIDING THE AP PEAL, CIT(A) HAS NO POWER TO DISMISS THE APPEAL FOR NON PROSECUTION BY RELYIN G ON THE RATIO/S LAID DOWN IN CIT VS. B.N. BHATTACHARYA & ANOTHER 118 ITR 461 (SC) AND LATE TUKOJI RAO HOLKER VS. CWT 223 ITR 480 (MP). IN THESE FACTS AND CIRCUMSTANCES, WHERE THE CIT(A) HAD DISMISSED THE APPEAL BY APPLYI NG THE ABOVE SAID RATIOS, THE ORDER OF THE LEARNED CIT(A) SUFFERS FROM INFIRM ITY. THE CIT(A) WHILE DECIDING THE ISSUE ON MERITS HAVE ALSO TO GIVE REAS ONS FOR COMING TO THE CONCLUSION AND IN THE ABSENCE OF THE SAME, THE ORDE R OF THE CIT(A) AGAIN SUFFERS FROM INFIRMITY. IN THE PRESENT APPEAL, WE F IND THAT THE CIT(A) HAS 3 ITA NO.3096/DEL/2018 ASSESSMENT YEAR: 2009-10 DISMISSED THE APPEAL EX-PARTE QUA THE ASSESSEE AND HAD FAILED TO DECIDE THE APPEAL BY PASSING REASONED ASSESSMENT ORDER. 7. ACCORDINGLY, WE SET ASIDE THE MATTER BACK TO THE FILE OF THE CIT(A) WITH DIRECTION TO THE CIT(A) TO DECIDE THE ISSUE ON MERI TS BY A REASONED ORDER, AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING T O THE ASSESSEE. FURTHER THE ASSESSEE IS ALSO DIRECTED TO APPEAR BEFORE THE CIT(A) AND PARTICIPATE IN THE APPELLATE PROCEEDINGS. THE APPEAL IS THUS DECID ED ON THIS PRELIMINARY ISSUE WITHOUT GOING INTO THE MERITS OF THE ADDITION . 8. HENCE THIS APPEAL IS RESTORED BACK TO THE FILE O F CIT(A) TO DECIDE THE ISSUE ON MERITS AFTER AFFORDING REASONABLE OPPORTUN ITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO COMPLY W ITH NOTICES ISSUED BY THE CIT(A). THE PRELIMINARY ISSUE RAISED IN THIS APPEAL IS THUS DECIDED IN FAVOUR OF ASSESSEE. SINCE THE APPEAL IS BEING DECIDED ON T HE PRELIMINARY ISSUE, WE ARE NOT ADDRESSING THE ISSUE RAISED ON MERIT. 9. IN THE RESULT, THIS APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT 29 TH DAY OF JANUARY, 2020. SD/- SD/- (N. K. BILLAIYA) (SUSHMA CHOWLA) /ACCOUNTANT MEMBER /VICE PRESIDENT / DATED : 29 TH JANUARY, 2020 . S. SHEKHAR, SR. P.S. 4 ITA NO.3096/DEL/2018 ASSESSMENT YEAR: 2009-10 COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. / THE CIT(A) 4. / DR, ITAT, DELHI 5. GUARD FILE. / BY ORDER , /ASSISTANT REGISTRAR, / ITAT, DELHI