Sanjay Kumar, Noida V. ITO, Ward-3(3), Noida

ITA 6043/DEL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7478 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 20-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PAWAN CHAUHAN
• Keywords: Set aside

Judgement Text

, . . , IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH S.M.C, NEW DELHI , BEFORE MS. SUSHMA CHOWLA, VICE PRESIDENT . / ITA NO.6043/DEL/2018 / ASSESSMENT YEAR 2010-11 SANJAY KUMAR, C/O-M/S. P. CHAUHAN & CO., 1120, 11 TH FLOOR, TOWER-A, THE I-THUM, PLOT NO.-A-40, SECTOR-62, NOIDA-201301. PAN-BMXPK6677B .......... /APPELLANT VS THE ITO, WARD-3(3), NOIDA. . / RESPONDENT . / ITA NO.6044/DEL/2018 / ASSESSMENT YEAR 2010-11 RAMPAT, C/O-M/S. P. CHAUHAN & CO., 1120, 11 TH FLOOR, TOWER-A, THE I-THUM, PLOT NO.-A-40, SECTOR-62, NOIDA-201301. PAN-BADPR8329D .......... /APPELLANT VS THE ITO, WARD-3(1), NOIDA. . / RESPONDENT / APPELLANT BY : SH.PAWAN CHAUHAN, CA / RESPONDENT BY : SH. PRADEEP SINGH GAUTAM, SR.DR / DATE OF HEARING : 15.01.2020 / DATE OF PRONOUNCEMENT: 29.01.2020 ITA NOS.6043 & 6044/DEL/2018 ASSESSMENT YEAR 2010-11 2 / ORDER PER SUSHMA CHOWLA, VP THE PRESENT APPEALS FILED BY DIFFERENT ASSESSEES AR E AGAINST SEPARATE ORDERS OF CIT(A)-1, NOIDA DATED 31.05.2018 & 29.06. 2018 RESPECTIVELY RELATING TO ASSESSMENT YEAR 2010-11 AGAINST ORDER P ASSED UNDER SECTION 144/147 OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT). 2. BOTH APPEALS FILED BY THE DIFFERENT ASSESSEES, W ERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORD ER FOR THE SAKE OF CONVENIENCE. 3. THE LD.AR FOR THE ASSESSEE POINTED OUT THAT SINC E THE ASSESSEE WAS AN AGRICULTURIST AND HAD NO SOURCE OF INCOME; HENCE , THERE IS NO REQUIREMENT TO FILE RETURN OF INCOME. HENCE, THERE WAS NO DEFAULT IN PAYMENT OF ADVANCE TAX. THE CIT(A) HAD DISMISSED THE APPEAL OF THE ASSESSEE ON THE GROUND THAT THE ASSESSEE HAD NOT PA ID ANY ADVANCE TAX. 4. ON THE PERUSAL OF RECORD, IT TRANSPIRES THAT THE ASSESSEE HAD NO TAXABLE INCOME WHERE THE ASSESSEE HAD NOT FILED ANY RETURN OF INCOME ON THE GROUND THAT HE HAD NO SOURCE OF INCOME EXCEPT A GRICULTURAL INCOME, THE ORDER OF THE CIT(A) IN HOLDING THE ASSESSE TO B E IN DEFAULT IN VIEW OF SECTION 249(4) OF THE ACT IS NOT CORRECT. THE CIT( A) HAD NOT DECIDED THE ISSUE ON MERITS. 5. AFTER HEARING BOTH PARTIES & PERUSED THE RECORD AND UNDER THE PROVISIONS OF SECTION 250(6) OF THE INCOME TAX ACT, 1961 (IN SHORT ACT), IT ITA NOS.6043 & 6044/DEL/2018 ASSESSMENT YEAR 2010-11 3 IS INCUMBENT UPON THE CIT(A) TO DECIDE THE APPEALS AFTER HEARING THE PARTIES AND STATE THE POINTS FOR DETERMINATION, THE DECISION THEREON AND ALSO THE REASONS FOR THE DECISION. WHILE DECIDING T HE APPEALS, CIT(A) HAS NO POWER TO DISMISS THE APPEALS FOR NON PROSECUTION BY RELYING ON THE RATIO/S LAID DOWN IN CIT VS. B.N. BHATTACHARYA & AN OTHER 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 T HE APPEALS BY APPLYING THE ABOVE SAID RATIOS, THE ORDER OF THE LE ARNED CIT(A) SUFFERS FROM INFIRMITY. THE CIT(A) WHILE DECIDING THE ISSUE ON M ERITS HAVE ALSO TO GIVE REASONS FOR COMING TO THE CONCLUSION AND IN THE ABS ENCE OF THE SAME, THE ORDER OF THE CIT(A) AGAIN SUFFERS FROM INFIRMITY. I N THE PRESENT APPEALS, I FIND THAT THE CIT(A) HAS DISMISSED THE APPEALS EX-PARTE QUA THE ASSESSEE AND HAD FAILED TO DECIDE THE APPEALS BY PASSING REA SONED ASSESSMENT ORDER. 6. 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 APPEALS ARE THUS DEC IDED ON THIS PRELIMINARY ISSUE WITHOUT GOING INTO THE MERITS OF THE ADDITION. 7. HENCE THESE APPEALS ARE RESTORED BACK TO THE FIL E OF CIT(A) TO DECIDE THE ISSUE ON MERITS AFTER AFFORDING REASONABLE OPPO RTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO COMPLY W ITH NOTICES ISSUED BY ITA NOS.6043 & 6044/DEL/2018 ASSESSMENT YEAR 2010-11 4 THE CIT(A). THE PRELIMINARY ISSUE RAISED IN THESE A PPEALS IS THUS DECIDED IN FAVOUR OF ASSESSEE. SINCE THE APPEALS ARE BEING DEC IDED ON THE PRELIMINARY ISSUE, WE ARE NOT ADDRESSING THE ISSUE RAISED ON ME RIT. 8. IN THE RESULT, BOTH APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH JANUARY 2020. SD/- (SUSHMA CHOWLA) /VICE PRESIDENT / DATED : 29 TH JANUARY, 2020 . * AMIT KUMAR * / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / THE PR. CIT 5. 6. , , / DR, ITAT, DELHI / GUARD FILE. / BY ORDER , , , ASSISTANT REGISTRAR, ITAT, DELHI