Kuldeep , New Delhi V. ITO, Ward- 39(1), New Delhi

ITA 4005/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8637 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 06-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside

Judgement Text

1 , . . , IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH S.M.C, NEW DELHI , ' BEFORE MS. SUSHMA CHOWLA, JUDICIAL MEMBER $ / ITA NO.4005/DEL/2019 % % / ASSESSMENT YEAR 2010-11 KULDEEP, H.NO.-85, VILLAGE-IBRAHIMPUR, MUKHMEL PUR, NEAR BUS STAND, DELHI-110036. PAN-BCTPK1414L .......... &' /APPELLANT VS THE ITO, WARD-39(1), NEW DELHI. . ()&' / RESPONDENT &'*+ / APPELLANT BY : MS. RANO JAIN, ADV. & MS. MANSI JAIN, CA ()&'*+ / RESPONDENT BY : SH. PRADEEP SINGH GAUTAM, SR.DR *,- / DATE OF HEARING : 14.01.2020 ./ *,- / DATE OF PRONOUNCEMENT: 17.01.2020 0 / ORDER PER SUSHMA CHOWLA, JM THE PRESENT APPEAL FILED BY ASSESSEE IS AGAINST ORD ER OF CIT(A)-13, NEW DELHI DATED 26.03.2019 RELATING TO ASSESSMENT Y EAR 2010-11 AGAINST ORDER PASSED UNDER SECTION 147/143(3) OF THE INCOME -TAX ACT, 1961 (IN SHORT THE ACT). 2. THE PRELIMINARY ISSUE RAISED BY THE ASSESSEE IN THIS APPEAL IS VIDE GROUND NO.2, WHICH READS AS UNDER:- ITA NO.4005/DEL/2019 ASSESSMENT YEAR 2010-11 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE COMMISSIONER OF INCOME TAX (APPEALS) [CIT(A)] HAS ERRED BOTH ON FACTS AND IN LAW IN PASSING THE ORDER WITHOUT GIVING ASSESSEE A PROPER AND ADEQUATE OPPORTUNITY OF BEING HEARD IN CLEAR VIOLATION OF TH E PRINCIPLE OF NATURAL JUSTICE. 3. 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. 4. THE LEARNED AR FOR THE ASSESSEE POINTED OUT THAT THE CIT(A) HAS PASSED THE EX-PARTE ORDER WITHOUT ALLOWING SUFFICIENT OPPORTUNITY OF HEARING AND WITHOUT GOING INTO THE MERITS OF THE CA SE. 5. THE LEARNED DR FOR THE REVENUE ON THE OTHER HAND POINTED OUT THAT SUFFICIENT OPPORTUNITY HAS BEEN AFFORDED TO THE ASS ESSEE. 6. I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED T HE 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 APPEAL A FTER HEARING THE PARTIES AND STATE THE POINTS FOR DETERMINATION, THE DECISIO N THEREON AND ALSO THE REASONS FOR THE DECISION. WHILE DECIDING THE APPEAL , CIT(A) HAS NO POWER TO DISMISS THE APPEAL FOR NON PROSECUTION BY RELYING O N 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 FRO M INFIRMITY. THE CIT(A) WHILE DECIDING THE ISSUE ON MERITS HAVE ALSO TO GIV E REASONS FOR COMING TO ITA NO.4005/DEL/2019 ASSESSMENT YEAR 2010-11 THE CONCLUSION AND IN THE ABSENCE OF THE SAME, THE ORDER OF THE CIT(A) AGAIN SUFFERS FROM INFIRMITY. IN THE PRESENT APPEAL , I FIND THAT THE CIT(A) HAS DISMISSED THE APPEAL EX-PARTE QUA THE ASSESSEE AND HAD FAILED TO DECIDE THE APPEAL BY PASSING REASONED ASSESSMENT OR DER. 7. ACCORDINGLY, I 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 DEC IDED 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 A PPEAL IS THUS DECIDED IN FAVOUR OF ASSESSEE. SINCE THE APPEAL IS BEING DECID ED ON THE PRELIMINARY ISSUE, I AM NOT ADDRESSING THE ISSUE RAISED ON MERI T. 9. IN THE RESULT, THIS APPEAL OF THE ASSESSEE IS A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH JANUARY 2020. SD/- (SUSHMA CHOWLA) /JUDICIAL MEMBER / DATED : 17 TH JANUARY, 2020 . * AMIT KUMAR * ITA NO.4005/DEL/2019 ASSESSMENT YEAR 2010-11 0*(,1232,4 COPY OF THE ORDER IS FORWARDED TO : 1. &' / THE APPELLANT 2. ()&' / THE RESPONDENT 3. 5, 6 7 / THE CIT(A) 4. 8 5, / THE PR. CIT 5. 6. 29:(, ; ; / DR, ITAT, DELHI :<%=4 GUARD FILE. 0 / BY ORDER , )2,(, // TRUE COPY // > ?@ A , ; ASSISTANT REGISTRAR, ITAT, DELHI