Srishti Resident Welfare Association, Noida V. ACIT, Circle- 3, Noida

ITA 6468/DEL/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 9412 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 02-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES SMC: DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA.NO.6468/DEL./2019 ASSESSMENT YEAR 2015-16 SRISHTI RESIDENT WELFARE ASSOCIATION T-6/803, PRASVANATH PRESTIGE-II, PLOT NO. 2, SECTOR-93-A, NOIDA, UTTAR PRADESH. PAN NO. AAEAS2644D VS. ACIT CIRCLE-3, NOIDA. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI K. PRASANNA, ADV. FOR REVENUE : SHRI PRAKASH DUBEY, SR. DR DATE OF HEARING : 0 5 .01.2021 DATE OF PRONOUN CEMENT : 0 5 .01.2021 ORDER THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST T HE ORDER OF LD. CIT(APPEALS)-1, NOIDA DATED 31.12.2018 FOR AY 2015-16. 2. I HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PAR TIES AND PERUSED THE ORDERS OF AUTHORITIES BELOW. 3. IN THIS CASE, AO PASSED THE ASSESSMENT ORDER DAT ED 03.10.2017 U/S 143(3) OF THE I.T. ACT. IT WAS CHAL LENGED BEFORE LD. CIT(A). LD. CIT(A) NOTED THAT ONLY FORM NO. 35 IS AVAILABLE 2 ITA.NO.6468/DEL./2019 ON OFFICIAL WEBSITE OF THE DEPARTMENT WHICH HAVE BE EN DOWNLOADED. IT IS NOTED THAT IMPUGNED ASSESSMENT O RDER, COPY OF THE DEMAND NOTICE AND CHALLAN OF FEE DEPOSI TED FOR FILING APPEAL ARE NOT AVAILABLE. SEVERAL NOTICES W ERE ISSUED TO THE ASSESSEE BUT NONE HAVE BEEN SERVED UPON THE ASS ESSEE. AS THE POSTAL AUTHORITIES RETURNED ENVELOPE WITH TH E REMARKS NO SUCH PERSON IS AVAILABLE AT THE GIVEN ADDRESS. THE LD. CIT(A) IN ABSENCE OF ASSESSEE CONSIDERED THE ISSUE IN DETAIL AND ULTIMATELY IN PARA 108 FOUND THAT IMPUGNED ASSE SSMENT ORDER IS DEFECTIVE IN LAW AND HAS TO BE ANNULLED ON MERITS AND TO PROTECT THE INTEREST OF THE REVENUE DIRECTION WA S ISSUED TO THE AO U/S 150 OF THE IT ACT TO REOPEN THE ASSESSME NT AND PASSED THE ORDER ACCORDINGLY. THE LD. CIT(A), HOWE VER, IN PARA 111 HAS CONFIRMED THE IMPUGNED ASSESSMENT ORDER AND DISMISSED THE APPEAL OF ASSESSEE. 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS, I AM OF THE VIEW THAT THE MATTER REQUIRES RECONSIDERATION AT THE LEV EL OF THE LD. CIT(A). 5. LD. COUNSEL FOR ASSESSEE RIGHTLY CONTENDED THAT NO NOTICE HAS BEEN SERVED UPON THE ASSESSEE. THEREFORE, ORDE R HAS BEEN PASSED WITHOUT PROVIDING OPPORTUNITY OF HEARING TO THE ASSESSEE. LD. COUNSEL FOR ASSESSEE FURTHER POINTED OUT THAT IN PARA 108 LD. CIT(A) ANNULLED THE ASSESSMENT ORDER A ND DIRECTED THE AO TO REOPEN THE ASSESSMENT AS PER LAW BUT AT THE END OF THE IMPUGNED ORDER CONFIRM THE ASSESSMENT OR DER AND 3 ITA.NO.6468/DEL./2019 DISMISS THE APPEAL OF THE ASSESSEE. THUS, THE APPE LLATE ORDER IS PASSED WITHOUT GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THE LD. CIT(A) ALSO PASSED CONTRADICTO RY APPELLATE ORDER. SUCH ORDER CANNOT BE SUSTAINED IN LAW. 6. I, ACCORDINGLY, SET ASIDE THE IMPUGNED APPELLATE ORDER AND RESTORE THE APPEAL OF ASSESSEE TO THE FILE OF L D. CIT(A)- NOIDA WITH DIRECTION TO RE-DECIDE THE APPEAL OF THE ASSESSEE IN ACCORDANCE WITH LAW BY GIVING REASONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 05.01.2021. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DATED: 05.01.2021 *KAVITA ARORA COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT SMC BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASSISTANT REGISTRAR : ITAT DELHI BENCHES : DELHI.