ITO, WARD- 1(5), NOIDA V. JAGDISH SINGH CHAUHAN, GAUTAM BUDH NAGAR

ITA 34/DEL/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7171 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-07-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 02-01-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: CHAMAN SINGH
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES SMC : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA.NO.34/DEL./2018 ASSESSMENT YEAR 2009-2010 THE INCOME TAX OFFICER, WARD-1(5), ROOM NO.307, 3 RD FLOOR, A-2D, AAYAKAR BHAWAN, SECTOR-24, NOIDA. PIN 201 301 UTTAR PRADESH. VS. SHRI JAGDISH SINGH CHAUHAN, S/O. SHRI CHANDAN SINGH, VILLAGE : SARDARPUR, SECTOR-45, NOIDA. DISTT: GAUTAM BUDH NAGAR. PAN AGKPC4932F (APPELLANT) (RESPONDENT) FOR REVENUE : SHRI S.L. ANURAGI, SR. D.R. FOR ASSESSEE : SHRI CHAMAN SINGH, ADVOCATE DATE OF HEARING : 0 5 .0 7 .2018 DATE OF PRONOUNCEMENT : 05 .0 7 .2018 ORDER THIS APPEAL BY REVENUE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-1, NOIDA, DATED 30.06.2017, FOR THE A.Y. 2009-2010. 2. THE A.O. PASSED THE ASSESSMENT ORDER DATED 28.12.2016 ON A TOTAL INCOME OF RS.47,30,000. THE A SSESSEE DID 2 ITA.NO.34/DEL./2018 SHRI JAGDISH SINGH CHAUHAN, GAUTAM BUDH NAGAR. NOT FILE RETURN OF INCOME. THE LD. CIT(A) NOTED THA T IMPUGNED ASSESSMENT ORDER HAS BEEN FRAMED BY A.O. WITHOUT AS SUMING JURISDICTION UNDER SECTION 143(2) OF THE I.T. ACT. IT IS ALSO NOTED THAT AS ON THE DATE THE IMPUGNED ASSESSMENT ORDER W AS FRAMED, THE A.O. HAD THE JURISDICTION TO FRAME A LAWFULLY C ORRECT ASSESSMENT, THE REVENUE IS PROTECTED UNDER SECTION 150 OF THE I.T. ACT, 1961. THE IMPUGNED ASSESSMENT ORDER WAS, THEREFORE, DELETED BEING BAD IN LAW, SUBJECT TO THE PROTECTION OF SECTION 150 OF THE I.T. ACT AND A.O. WAS DIRECTED TO RE-FRA ME THE ASSESSMENT AFTER COMPLYING WITH THE REQUIREMENT OF PROCEDURE AS PER LAW. 3. THE LD. D.R. CONTENDED THAT IN THIS CASE NO RET URN OF INCOME HAVE BEEN FILED. THEREFORE, THERE IS NO QUES TION OF SERVICE OF NOTICE UNDER SECTION 143(2) OF THE I.T. ACT. HE HAS SUBMITTED THAT ON IDENTICAL ISSUE, THE ITAT, SMC-BENCH IN THE CASE OF ITO, WARD-1(1), NOIDA VS. ASHOO SINGHAL, GURGAON IN ITA. NO.7821/ DEL./2017 FOR A.Y. 2009-2010 VIDE ORDER DATED 02.05 .2018 RESTORED THE MATTER TO THE FILE OF LD. CIT(A), TO P ASS A SPEAKING 3 ITA.NO.34/DEL./2018 SHRI JAGDISH SINGH CHAUHAN, GAUTAM BUDH NAGAR. ORDER. THE RELEVANT FINDINGS OF THE TRIBUNAL IS REP RODUCED AS UNDER : 4. I HAVE GONE THROUGH THE ORDERS OF THE REVENUE AUTHORITIES AND THE GROUND RAISED BY THE DEPARTMENT AND ESPECIALLY THE IMPUGNED ORDER DATED 30.6.2017 PASSE D BY THE LD. CIT(A)-I, NOIDA. FOR THE SAKE CONVENIENCE, I AM REPRODUCING HEREWITH THE CONTENTS OF THE IMPUGNED ORDER OF THE LD. CIT(A) AS UNDER:- 1. THE PRESENT APPEAL IS FILED BY THE APPELLANT AGAINST AN ASSESSMENT ORDER DATED 30.11.2016 PASSED BY THE AO U/S. 144 /147 OF THE I.T. ACT, 1961 FOR AY 2009-10 ON A TOTAL INCOME OF RS. 38.53.500/- AGAINST NO RETURN OF INCOME FILED BY THE ASSESSEE. AGGRIEVED BY THE SAME THE APPELLANT HAS PREFERRED APPEAL. 2. MS. RITIKA CHHABARA, CA APPEARED AND CANVASSED THE CASE OF THE APPELLANT. 3. THE IMPUGNED ASSESSMENT ORDER HAS BEEN FRAMED WITHOUT ASSUMING JURISDICTION U/S. 143(2) OF I.T. ACT, 1961 AND IS THEREFORE BAD IN LAW. AS ON THE DATE OF FRAMING OF THE UNLAWFUL ASSESSMENT ORDER THE LD. AO WAS OTHERWISE 4 ITA.NO.34/DEL./2018 SHRI JAGDISH SINGH CHAUHAN, GAUTAM BUDH NAGAR. COMPETENT TO FRAME THE ASSESSMENT ORDER IN THE CASE OF THE APPELLANT AFTER ADHERING TO THE CORRECT PRESCRIBED PROCEDURE, THE CASE OF THE REVENUE IS PROTECTED UNDER SECTION 150 OF I.T. ACT, 1961. IN VIEW OF THE IMPUGNED ASSESSMENT ORDER IS THEREFORE DELETED AND THE LD. AO IS DIRECTED TO REFRAME THE ASSESSMENT ORDER AFTER FOLLOWING THE CORRECT PRESCRIBED PROCEDURE AND IN TERMS OF THE JURISDICTION CONFERRED UNDER SECTION 150 OF I.T. ACT, 1961. THE APPEAL OF THE APPELLANT IS DISPOSED IN TERMS OF THE ABOVE. 5. I HAVE ALSO GONE THROUGH THE ASSESSMENT ORDER DA TED 30.11.2016 PASSED U/S. 147/144 OF THE I.T. ACT, 196 1 AND I AM OF THE VIEW THAT AO HAS PASSED THE ORDER U/S. 144 OF THE ACT WITHOUT GIVING SUFFICIENT OPPORTUNITY TO TH E ASSESSEE AND THE LD. CIT(A) HAS ALSO PASSED A NON-SPEAKING O RDER WHICH I HAVE REPRODUCED AS ABOVE, WHICH IS NOT SUST AINABLE IN THE EYES OF LAW. THEREFORE, IN THE INTEREST OF J USTICE, I AM SETTING ASIDE THE IMPUGNED ORDER DATED 30.6.2017 PASSED BY THE LD. CIT(A) WITH THE DIRECTION TO THE LD. CIT (A) TO PASS A SPEAKING ORDER, AFTER GOING THROUGH THE ASSESSMEN T 5 ITA.NO.34/DEL./2018 SHRI JAGDISH SINGH CHAUHAN, GAUTAM BUDH NAGAR. RECORDS AND GIVE ADEQUATE OPPORTUNITY OF BEING HEAR D TO THE ASSESSEE. 6. IN THE RESULT, THE REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 4. ON THE OTHER HAND, LEARNED COUNSEL FOR THE ASSE SSEE SUBMITTED THAT THE CASE OF THE WIFE OF THE ASSESSEE IS ALSO TAKEN BY THE DEPARTMENT ON WHICH TWO DIFFERENT VIEWS SHOU LD NOT BE TAKEN AND ASSESSEE MAY BE PROVIDED WITH AN OPPORTUN ITY OF BEING HEARD AND CASE MAY BE TRANSFERRED TO THE RESP ECTIVE JURISDICTIONAL WARD OF THE INCOME TAX DEPARTMENT IN NOIDA. 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS, I AM O F THE VIEW THAT SINCE IN IDENTICAL CIRCUMSTANCES, THE TRI BUNAL IN THE CASE OF ITO, WARD-1(1), NOIDA VS. SHRI ASHOO SINGHA L, GURGAON (SUPRA), RESTORED THE MATTER TO THE FILE OF LD. CIT (A), THEREFORE, FOLLOWING THE SAME ORDER AND CONSIDERING THE REQUES T OF THE ASSESSEE, I SET ASIDE THE ORDER OF THE LD. CIT(A) A ND RESTORE THE APPEAL OF ASSESSEE TO HIS FILE WITH A DIRECTION TO PASS ORDER ON MERIT, BY GIVING REASONS FOR DECISION OF THE SAME. LD. CIT(A) MAY 6 ITA.NO.34/DEL./2018 SHRI JAGDISH SINGH CHAUHAN, GAUTAM BUDH NAGAR. ALSO TAKE INTO CONSIDERATION IF ANY ORDER HAVE BEEN PASSED IN THE CASE OF ASSESSEES WIFE SMT. GEETA DEVI. 6. IN THE RESULT, DEPARTMENTAL APPEAL IS ALLOWED F OR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) DELHI, DT. 05 TH JULY, 2018. JUDICIAL MEMBER VBP/- COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT SMC BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASSISTANT REGISTRAR : ITAT DELHI BENCHES : DELHI.