M/s. Diamond Builders Pvt. Ltd., Ghaziabad V. ITO, New Delhi

ITA 5569/DEL/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7412 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 22-06-2016
• Assessment Year: 2001-2002
• Appeal Filed On: 14-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: CHANDER SHEKHAR
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : SMC-I : NEW DELHI BEFORE SHRI R.S. SYAL, ACCOUNTANT MEMBER ITA NO.5569/DEL/2014 ASSESSMENT YEAR : 2001-02 DIAMOND BUILDERS PVT. LTD., 157, CHANDER PURI, GHAZIABAD. PAN: AAACD6491R VS. ITO, WARD-10(3), NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI CHANDER SHEKHAR, CA DEPARTMENT BY : SHRI DEEPAK GARG, SR. DR DATE OF HEARING : 22.06.2016 DATE OF PRONOUNCEMENT : 22 .06.2016 ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER PASSED BY THE CIT(A) ON 22.8.2014 IN RELATION TO TH E ASSESSMENT YEAR 2001-02. IT IS A RECALLED MATTER INASMUCH AS THE EA RLIER EX PARTE ORDER PASSED BY THE TRIBUNAL WAS SUBSEQUENTLY RECALLED VI DE ITS LATER ORDER DATED 6.5.2016. ITA NO.5569/DEL/2014 2 2. THE FIRST ISSUE RAISED IN THIS APPEAL IS AGAINST NON ISSUE/SERVICE OF NOTICE U/S 143(2) OF THE ACT, THEREBY LEADING TO NU LLITY OF THE ASSESSMENT. 3. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AO DID NOT ISSUE ANY NOTICE U/S 143(2) BEFORE FINALIZING THE A SSESSMENT U/S 143(3) READ WITH SECTION 147. IT WAS SUBMITTED THAT THIS ISSUE WAS TAKEN UP BEFORE THE LD. CIT(A) IN THE FIRST ROUND OF PROCEED INGS, BUT, THE APPEAL OF THE ASSESSEE WAS DISMISSED BY MEANS OF A NON-SPEAKI NG ORDER. WHEN THE ASSESSEE APPROACHED THE TRIBUNAL, THE ORIGINAL ORDE R PASSED BY THE LD. CIT(A) WAS SET ASIDE WITH THE DIRECTION TO THE FIRS T APPELLATE AUTHORITY TO PROVIDE THE ASSESSEE A REASONABLE OPPORTUNITY OF BE ING HEARD AND, THEREAFTER: PASS A SPEAKING ORDER ON MERITS. WHEN THE MATTER AGAIN CAME UP BEFORE THE LD. CIT(A), THE LD. AR POINTED O UT, THE ASSESSEE AGAIN RAISED THE OBJECTION ABOUT THE NON ISSUE/SERV ICE OF NOTICE U/S 143(2) WHICH THE LD. CIT(A) REFUSED TO DISPOSE OF B Y HOLDING THAT THE TRIBUNAL HAS RESTORED THE MATTER TO THE CIT(A) FOR PASSING THE SPEAKING ORDER `ON MERITS. THAT IS HOW THE LD. CIT(A) DEAL T WITH ADDITIONS MADE ON MERITS. THE LD. AR CONTENDED THAT, THUS, THE LE GAL GROUNDS ABOUT NON- ITA NO.5569/DEL/2014 3 ISSUE/SERVICE OF NOTICE U/S 143(2) REMAINED UNDISPO SED OF. THE LD. DR CANDIDLY AGREED WITH THE CONTENTION ADVANCED ON BEH ALF OF THE ASSESSEE. 4. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERVED THAT T HE TRIBUNAL IN THE FIRST ROUND REMITTED THE MATTER TO THE FILE OF THE LD. CI T(A) FOR DISPOSING OF THE APPEAL `ON MERITS WHICH MEANS THAT ALL THE GRO UNDS, INCLUDING THE LEGAL GROUNDS WERE REQUIRED TO BE DISPOSED OF BY TH E LD. CIT(A) ON MERITS BY A SPEAKING ORDER RATHER THAN DISPOSING TH E APPEAL IN SUMMARY MANNER. THE QUESTION OF SERVICE OF NOTICE U/S 143 (2) IS A NECESSARY LEGAL ISSUE WHICH LEADS TO THE ACQUISITION OF JURIS DICTION FOR FRAMING THE ASSESSMENT. SINCE THE LD. CIT(A) HAS NOT DISPOSED OF THIS LEGAL GROUND RAISED BEFORE HIM, I AM OF THE CONSIDERED OPINION T HAT THE ENDS OF JUSTICE WOULD MEET ADEQUATELY IF THE IMPUGNED ORDER IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF LD. CIT(A). I ORDER ACC ORDINGLY AND DIRECT HIM TO DISPOSE OF ALL THE GROUNDS TAKEN BEFORE HIM INCL UDING THE LEGAL GROUNDS, ON MERITS, AFTER ALLOWING A REASONABLE OPP ORTUNITY OF BEING HEARD TO THE ASSESSEE. ITA NO.5569/DEL/2014 4 5. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON 22.06.201 6. SD/- [R.S. SYAL] ACCOUNTANT MEMBER DATED, 22 ND JUNE, 2016. DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.