Pushapdeep Singh Sandhu, V. Income Tax Officer,Ward 6(4),

ITA 659/CHANDI/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5030 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 13-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Assessee Lawyers: J K GUPTA; JYOTSNACA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, SMC, CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER ITA NO.659/CHD/2017 ASSESSMENT YEAR: 2009-10 SHRI PUSHAPDEEP SINGH SANDHU, VS. THE ITO, 2706 PHASE-7, MOHALI WARD 6(4), (NOW AT 1015, NEAR NARINDER PALACE, MOHALI. KOTKAPURA, DISTT. FARIDKOT. PAN NO. CAOPS5959L (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI J.K.GUPTA & MS. JYOTSNA,CA RESPONDENT BY : SHRI MANJIT SINGH, SR.DR DATE OF HEARING : 22.05.2017 DATE OF PRONOUNCEMENT : 13.07.2017 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILIN G THE CORRECTNESS OF THE ORDER DATED 20.02.2017 OF CIT (APPEA LS)-2 CHANDIGARH PERTAINING TO 2009-10 ASSESSMENT YEAR ON VARIOUS GROUN DS ON MERITS. HOWEVER, ATTENTION WAS INVITED TO GROUND NO. 1, WHICH, IT W AS SUBMITTED HAS BEEN LEFT UNDECIDED BY THE CIT(A) DESPITE THE FACT THAT TH E ARGUMENTS IN SUPPORT OF THE SAME HAVE BEEN REPRODUCED IN THE IMPUGN ED ORDER. THE SPECIFIC GROUND IS REPRODUCED HEREUNDER : THAT THE LD. CIT(A) ERRED IN UPHOLDING THE EX-PART E ASSESSMENT WHEN THE NOTICE OF HEARING DATED 09.12.2011 FOR 14.12.2011 WAS NOT SERVED UPON THE ASSESSEE. 2. THE LD. AR INVITING ATTENTION TO PAGE 2 OF THE CIT(A)S O RDER SUBMITTED THAT THE CIT(A) IN PARA 5 HAS REPRODUCED THE FOLLOWING SUBMISSIONS : THAT THE SO CALLED NOTICE DATED 09.12.2011 FOR 14.1 2.2011 AND SHOW CAUSE NOTICE U/S 271(1)(H) DATED 09.02.2011 WERE NOT SERVED UPON ME AS / HAVE SHIFTED TO KOTAKAPURA IN MARCH' 2010 AS ABOVE. 5. THAT EVEN THE EX-PARTE ASSESSMENT ORDER WAS NOT SER VED UPON ME BUT UPON SOMEONE KARAN ON 14.12.2011 TO COMPLETE THE RECORD OF THE AO AS PER SIGNATURE ON THE DEMAND NOTICE . 3 REFERRING TO THE IMPUGNED ORDER, HE SUBMITTED THAT HOW EVER, WHILE DECIDING THE APPEAL, HE FAILED TO ADDRESS THE SAID GROUND. 4. THE LD. SR. DR CONSIDERING THE RECORD SUBMITTED THAT T HE SAID SUBMISSION WAS ADVANCED AND CONSIDERED FOR CONDONING THE DELAY OF 1355 2 DAYS AND IN THE ABSENCE OF ANY SPECIFIC PRAYER, THE CIT(A ) HAS DISMISSED GROUND NO. 1 AS A GENERAL GROUND. 5. AFTER PERUSING THE MATERIAL AVAILABLE ON RECORD I FIND THA T BEFORE CIT(A), THE ASSESSEE HAS RAISED THE GROUND NO. 1 ASSAILING THE ASSESSMENT ORDER. THE ARGUMENT ON THE BASIS OF WHICH THE ORDER WAS CLAIMED TO BE BAD IN LAW IS FOUND EXTRACTED IN THE ORDER AND HAS BEEN REPRODUCED IN THE EARLIER PART OF THIS ORDER. THE SAID ARGUMENT HAS BEEN ADDRESSED THOU GH FOR EXPLAINING THE DELAY IN FILING OF THE APPEAL. I FIND THAT THE FINDING OF THE CI T(A) THAT IT WAS A GENERAL GROUND, CANNOT BE FAULTED WITH. SINCE THE ASSESSE E SEEKS TO ASSAIL THE JURISDICTION OF THE AO ITSELF BY WAY OF FACTS AVAILABLE ON RECO RD, I FIND THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES, IT WOULD BE APPROPRIA TE TO SET ASIDE THE ISSUE BACK TO THE FILE OF THE CIT(A) WITH A DIRECTION TO PAS S A SPEAKING ORDER IN ACCORDANCE WITH LAW REQUIRING THE ASSESSEE FIRST TO RAISE SPECIFIC OBJECTION TO THE JURISDICTION OF THE AO AND ONLY THEREAFTER THE ASSES SEE CAN PRAY FOR A DECISION ON MERITS, IF NEED BE. SAID ORDER WAS PRONOUNCED AFTER HEARING THE SUBMISSIONS OF THE PARTIES BEFORE THE BENCH. THE JURISDICT IONAL GROUND BEING THE FOUNDATIONAL GROUND CAN BE ASSAILED AT ANY STAGE, SP ECIALLY WHERE THE FACTS ARE ALREADY AVAILABLE ON RECORD AS PER SETTLED LEGAL POSITION THER EOF. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPO SES. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH JULY,2017. SD/- (DIVA SINGH) JUDICIAL MEMBER POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSTT. REGISTRAR ITAT,CHANDIGARH.