Sh. Kamal Kishore Sharma, New Delhi V. ITO, New Delhi

ITA 4273/DEL/2010

AI Insights

The case involves an appeal by Sh. Kamal Kishore Sharma against the order of the CIT(A)-XXVII, New Delhi, which arose from an earlier order passed by the ITO, Ward-35(3), New Delhi under sections 144/147 of the Income Tax Act, 1961. The primary contention in the appeal was the alleged non-service of mandatory notices under sections 147/148 of the Act. The ITAT noted the absence of the assessee and the failure of the Revenue to produce the assessment record as previously directed. Consequently, the ITAT decided to restore the matter concerning the non-service of notices to the CIT(A) for a detailed examination of the assessment record.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 113758 (ITAT-DELHI)
• Duration Of Justice: 12 year(s) 9 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 07-06-2023
• Assessment Year: 2001-2002
• Appeal Filed On: 15-09-2010
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH ‘C’ : NEW DELHI) BEFORE SH. N.K.BILLAIYA, ACCOUNTANT MEMBER AND SH.ANUBHAV SHARMA, JUDICIAL MEMBER ITA No. 4273/Del/2010, A.Y. 2001-02 Sh. Kamal Kishore Sharma, 46/1A/7, East Azad Nagar, Delhi-110051 PAN : AFSPK7338G Vs. ITO, Wd. 35(3), N.Delhi Appellant Respondent Appellant by None Respondent by Shri Bhopal Singh, Sr. DR Date of hearing: 08.06.2023 Date of Pronouncement: 26.06.2023 ORDER Per Anubhav Sharma, JM : The appeal has been preferred by the Assessee against the order dated 25.11.2009 of CIT(A)-XXVII, New Delhi (hereinafter referred as Ld. First Appellate Authority or in short Ld. ‘FAA’) in appeal no. 130/08-09 arising out of an appeal before it against the order dated 10.12.2008 passed u/s 144/147 of the Income Tax Act, 1961 (hereinafter referred as ‘the Act’) by the ITO, Ward- 35(3), New Delhi (hereinafter referred as the Ld. AO). 2. Heard and perused the record. 3. Non-appeared for the assessee, the record shows notices were issued to the assessee for today. The same are received back with report that the assessee 2 ITA no. 4273/Del/2010 Sh. Kamal Kishore Sharma 2 has left without address. No further opportunity is justifiable. Ld. DR supported findings of Ld. Tax authorities below. 4. Further, record shows on 24.11.2021, bench had directed Revenue to produce the assessment record to consider the question if mandatory notice u/s 147/148 was served upon the assessee or not. Record is not produced. It was also observed by the Bench on 24.11.2021 that in case record is not produced, adverse view in the matter shall be taken. However, none is present on behalf of the assessee for assistance. 5. The order of Ld. CIT(A) shows that the question of non-service of mandatory notice was examined by the Ld. CIT(A) as it was mentioned in para no. 4.1 that notice u/s 148 of the Act dated 27.03.2008 was issued and served upon the person on 28.03.2008. The assessee did not appear before Ld. AO and the assessment order was passed u/s 144/147 of the Act. At the same time in para no. 5 of the order ld. CIT(A) mentions that “the reasons recorded for reopening the case for the assessment u/s 147/148 were not provided to the assessee as he did not respond the notice u/s 148 of the Act dated 27.03.2008”. Thus there is no categorical finding of ld. CIT(A) on this issue of no service of mandatory notices. The service of notice u/s 147/148 being question of fact not coming up from the orders of Ld. Tax authorities and as the record is also not made available here inspite of opportunity. It is required to be re-appreciated by Ld. CIT(A) on the basis of examination of record of assessment. 6. Accordingly, the issue with regard to non-service of mandatory notices for re-assessment is restored to the files of ld. CIT(A). The appeal of Assessee is allowed for statistical purposes. Order pronounced in the open court on 26 th June, 2023. Sd/- Sd/- (N.K.BILLAIYA) (ANUBHAV SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER Date:- .06.2023 *Binita, SR.P.S* Copy forwarded to: 3 ITA no. 4273/Del/2010 Sh. Kamal Kishore Sharma 3 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI