Rama Kant Sharma, Uttar Pradesh V. ITO, Noida

ITA 5716/DEL/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5766 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2008-2009
• Appeal Filed On: 07-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F, NEW DELHI BEFORE SH.BHAVNESH SAINI, JUDICIAL MEMBER AND SH. O.P.KANT, ACCOUNTANT MEMBER ITA NO.5716/DEL/2016 [ASSESSMENT YEAR: 2008-09] APPELLANT BY SH. RAJIV SAXENA, ADV. RESPONDENT BY SH. ATIQ AHMED, SR.DR DATE OF HEARING 28.06.2018 DATE OF PRONOUNCEMENT 28 .06.2018 ORDER PER BHAVNESH SAINI, JUDICIAL MEMBER THIS APPEAL BY THE ASSESSEE HAS BEEN DIRECTED AGAIN ST THE ORDER OF LD.CIT(A)-I, NOIDA DATED 24.06.2016 FOR AY 2008-09. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE AO PA SSED AN ASSESSMENT ORDER U/S 147/144 OF THE INCOME TAX ACT, 1961 (IN SHORT ACT). THE AO NOTED IN THE ASSESSMENT ORDER THAT NO RETURN OF INCOME HAS BEEN FILED BY THE ASSESSEE. THE ASSESSEE WITHOUT FILING THE RETURN OF INCOME, ATTEN DED THE PROCEEDINGS BEFORE THE AO. THE ASSESSEE FILED REPLY AND THE DETAILS O N THE BASIS OF WHICH THE AO MADE SEVERAL ADDITIONS AGAINST THE ASSESSEE AND ASS ESS THE TOTAL INCOME AT RS.82,27,070/-. THE ASSESSEE PREFERRED APPEAL BEFO RE LD.CIT(A). LD.CIT(A) NOTED THAT SEVERAL NOTICES HAVE BEEN ISSUED TO THE ASSESSEE FOR HEARING OF THE APPEAL. HOWEVER, THE ASSESSEE DID NOT MAKE ANY RES PONSE TO THE STATUTORY RAMA KANT SHARMA, S/O-SHRI RAM, HOUSE NO.A-113, ALPHA-1 ST , GREATER NOIDA, DISTT.-GAUTAM BUDH NAGAR, UTTAR PRADESH. PAN-BEAPS3992C VS ITO, WARD-3(1), AAYAKAR BHAWAN, A-2D, SECTOR-24, NOIDA. (APPELLANT) (RESPONDENT) ITA NO.5716/DEL/2016 PAGE | 2 NOTICES ISSUED FOR DISPOSAL OF THE APPEAL. LD.CIT( A) IN THE ABSENCE OF ANY REPRESENTATION FROM THE SIDE OF THE ASSESSEE AND CO NSIDERING IT TO BE A HIGH DEMAND CASE, DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION. 3. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PA RTIES AND PERUSED THE FINDINGS OF THE AUTHORITIES BELOW. THE ASSESSEE IN THIS CASE MOVED APPLICATION FOR EARLY HEARING IN WHICH IT IS EXPLAINED THAT LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION AND HAS NOT ADJUDI CATED THE GROUNDS OF APPEAL. THE ORDER OF LD.CIT(A) IS REQUIRED TO BE S ET ASIDE BEFORE LD.CIT(A) FOR ADJUDICATING THE GROUNDS OF APPEAL RAISED BEFORE LD .CIT(A) ON MERITS. IN THIS VIEW OF THE MATTER, EARLY HEARING HAS BEEN GRANTED TO THE ASSESSEE. THE APPEAL IS FIXED TODAY I.E. 28.06.2018 FOR HEARING. THE AS SESSEE, HOWEVER, SOUGHT ADJOURNMENT WHICH IS REJECTED CONSIDERING IT TO BE IMPROPER IN VIEW OF THE FACTS NOTED ABOVE. 3.1. AFTER CONSIDERING RIVAL SUBMISSIONS, WE ARE OF THE VIEW THAT THE MATTER REQUIRES RE-CONSIDERATION AT THE LEVEL OF LD.CIT(A) . ACCORDING TO SECTION 250(6) OF THE ACT, LD.CIT(A) IS REQUIRED TO MENTION POINT FOR DETERMINATION IN THE APPELLATE ORDER AND REASONS FOR DECISION WHILE DISP OSING THE APPEAL OF THE ASSESSEE. HOWEVER, LD.CIT(A) DID NOT DECIDE THE AP PEAL OF THE ASSESSEE ON MERIT AND WITHOUT GIVING REASONS FOR DECISION, DISM ISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION. THUS, THE ORDER OF LD .CIT(A) CANNOT BE SUSTAINED IN LAW. FURTHER, EVEN IF THE ASSESSEE DID NOT APPE AR BEFORE LD.CIT(A), HE IS REQUIRED TO PASS THE ORDER ON MERITS GIVING REASONS FOR DECISION IN THE APPELLATE ORDER. LD. COUNSEL FOR THE ASSESSEE, HOWEVER, SUBM ITTED THAT THE MATTER MAY BE REMANDED TO THE AO OR THAT THE APPEAL OF THE ASS ESSEE BE DECIDED ON MERIT. ITA NO.5716/DEL/2016 PAGE | 3 THE PRAYER OF LD. COUNSEL FOR THE ASSESSEE IS WITHO UT ANY SUBSTANCE AND IS IMPROPER, THE SAME IS ACCORDINGLY REJECTED. THE TR IBUNAL HAS BEEN HEARING THE APPEAL OF THE ASSESSEE AGAINST ORDER OF LD.CIT(A), THEREFORE, THE MATTER SHALL HAVE TO GO BACK TO LD.CIT(A) FOR DECIDING THE APPEA L ON MERIT AS PER LAW. IT IS IMPORTANT TO NOTE THAT THE ASSESSEE IN APPLICATION FOR EARLY HEARING MADE A SIMILAR REQUEST THAT THE ORDER OF THE LD.CIT(A) IS REQUIRED TO BE SET ASIDE BECAUSE THE APPEAL OF THE ASSESSEE HAS BEEN DISMISS ED FOR NON-PROSECUTION AND MATTER SHALL HAVE TO GO BACK TO THE FILE OF LD. CIT(A) FOR DECIDING THE APPEAL ON MERITS. THE REQUEST OF THE ASSESSEE FOR REMANDI NG THE MATTER TO THE FILE OF THE AO OR DECIDING ON MERIT IS WITHOUT ANY BASIS, T HE SAME IS ACCORDINGLY REJECTED. IN VIEW OF THE ABOVE DISCUSSION, SINCE L D.CIT(A) HAS NOT PASSED THE REASONED ORDER ON MERITS, WE SET ASIDE THE IMPUGNED ORDER AND RESTORE THE APPEAL OF THE ASSESSEE TO THE FILE OF LD.CIT(A)-1, NOIDA WITH THE DIRECTION TO RE- DECIDE THE APPEAL OF THE ASSESSEE ON MERITS STRICTL Y AS PER LAW. LD.CIT(A) SHALL PASS THE ORDER ON MERIT GIVING REASONS FOR DECISION IN THE APPELLATE ORDER BY GIVING REASONABLE SUFFICIENT OPPORTUNITY OF BEING H EARD TO THE ASSESSEE AND THE AO. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (O.P.KANT) (BHAVNESH SA INI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE:-28.06.2018 *AMIT KUMAR* ITA NO.5716/DEL/2016 PAGE | 4 COPY FORWARDED TO: 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) CONCERNED 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI