Rakesh Kumar Tehlan, New Delhi V. ITO, Ward- 43(1), New Delhi

ITA 6598/DEL/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3270 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 08-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJIV MAHAJAN
• Keywords: Opportunity of being heard; Set aside
• Section: 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC: NEW DELHI SMT. DIVA SINGH, JUDICIAL MEMBER I.T.A NO. 6598/DEL/2019 (ASSESSMENT YEAR: 2013-14) RAKESH KUMAR TEHLAN SHOP NO. 4, VIRENDER NAGAR MARKET, NAJAFGARH, NEW DELHI. PAN NO. ACDPT7132R VS. INCOME TAX OFFICER WARD 43(1) NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY NONE RESPONDENT BY SHRI SANJIV MAHAJAN, SR. DR DATE OF HEARING 18.10.2021 DATE OF PRONOUNCEMENT 20.10.2021 HEARING CONDUCTED VIA WEBEX ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE, WHEREIN THE ASSESSEE ASSAILS THE CORRECTNESS OF THE ORDER DATED 27.03.2018 OF CIT(APPEALS), NEW DELHI PERTAINING TO 2013-14 ASSES SMENT YEAR. ALTHOUGH VARIOUS GROUNDS HAVE BEEN RAISED ASSAILING THE ORDER ON MERITS. HOWEVER, THE SOLE ISSUE TAKEN UP FOR CONSI DERATION IN THE PRESENT PROCEEDING IS GROUND NO. 1 WHICH READS AS U NDER: - 1. THAT THE HONBLE COMMISSIONER OF INCOME TAX (APPEA LS) HAS ERRED IN THE LAW AS MUCH AS ON THE FACTS OF THE CASE BY DISM ISSING THE APPEAL OF THE APPELLANT FOR NON ATTENDANCE WITHOUT APPRECI ATING THE FACTS OF THE CASE OF THE APPELLANT ON THE MERITS AND WITHOUT PROVIDING AN ADEQUATE OPPORTUNITY OF BEING HEARD. 2. AT THE TIME OF HEARING, NO ONE WAS PRESENT ON BE HALF OF THE ASSESSEE. THE RECORD SHOWS THAT ON EACH OF THE OCC ASIONS THE APPEAL CAME UP FOR HEARING THE ASSESSEE HAS REMAINED UNREP RESENTED BEFORE THE ITAT. THE APPEAL IS BEING DECIDED EX-PARTE QUA THE ASSESSEE APPELLANT ON MERITS AFTER HEARING THE REVENUE AND C ONSIDERING THE RECORD. ITA NO.6598/DEL/2019 PAGE 2 OF 3 3. THE LD. SR. DR WAS HEARD WHO RELIES UPON THE IMP UGNED ORDER STATING THAT THE NOTICES TO THE ASSESSEE RETURNED B ACK UN-SERVED WITH THE COMMENT LEFT ADDRESS ETC. ACCORDINGLY, AFTER MAKING FEW ATTEMPTS THE LD. COMMISSIONER IT WAS SUBMITTED WAS JUSTIFIED IN HOLDING THAT THE ASSESSEE IS NOT SERIOUS IN PURSUING THE APPEAL FILE D. HENCE, DISMISSING THE SAME RELYING UPON THE POSITION OF LAW AS HELD I N CIT VS. B.N. BHATACHARYA & OTHERS, 118 ITR 461 AND ESTATE OF LAT E TUKOJI RAO HOLKAR VS. CWT, 223 ITR 480 (MP) IT WAS SUBMITTED THAT THE ADDITION MADE IN THE ASSESSMENT ORDER WERE CONFIRMED. 4. I HAVE HEARD THE SUBMISSIONS AND PERUSED THE MAT ERIAL AVAILABLE ON RECORD. ON A CONSIDERATION OF THE STATUTORY REQ UIREMENTS, I AM OF THE VIEW THAT THE IMPUGNED ORDER IN VIOLATION OF THE ST ATUTORY REMIT CANNOT BE UPHELD. SUB-SECTION (6) OF SECTION 250 OF THE I NCOME TAX ACT, 1961 MANDATES THAT THE ORDER PASSED BY THE LD. COMMISSIO NER SHOULD BE 250(6) . BE IN WRITING AND SHALL STATE THE POINTS FOR DET ERMINATION, THE DECISION THEREON AND THE REASON FOR THE DECISION . I FIND THAT THE SAID STATUTORY REQUIREMENT IS NOT FULFILLED. THE FIRST APPELLATE AUTHORITY EXERCISING ITS POWERS IS EXPECTED TO SET OUT THE PO INTS FOR DETERMINATION IN THE APPEAL FILED ARRIVE AT A DECISION THEREON AL ONGWITH REASONS FOR THE DECISION TAKEN. THESE STEPS ARE MISSING. HENCE FO R WANT OF THESE DEFICIENCIES THE ORDER CANNOT BE UPHELD. 5. ACCORDINGLY, THE IMPUGNED ORDER IS SET ASIDE. W HILE SO DIRECTING IT IS SEEN THAT EVEN BEFORE THE ITAT THE ASSESSEE H AS REMAINED UNREPRESENTED. THE NOTICES SENT HAVE REPEATEDLY CO ME BACK WITH THE COMMENTS LEFT WITHOUT ADDRESS. IT IS SEEN THAT T HE ASSESSEE IN THE FORM NO. 36 FILED IN THE REGISTRY HAS MADE THIS VER Y SAME ADDRESS AVAILABLE TO THE ITAT AS AVAILABLE TO THE ASSESSING OFFICER AND THE CIT(APPEALS). IT IS FURTHER SEEN THAT IN THE ASSES SEES PERSONAL ITA NO.6598/DEL/2019 PAGE 3 OF 3 INFORMATION AS PER FORM NO. 36 EMAIL ADDRESS PROVID ED FOR COMMUNICATION IS: - [e-mail] 6. ACCORDINGLY, THE IMPUGNED ORDER IS SET ASIDE BA CK TO THE FILE OF THE CIT(A) WITH A DIRECTION TO PASS A SPEAKING ORDE R IN ACCORDANCE WITH LAW. THE ASSESSEE IN ITS OWN INTEREST IS DIRECTED TO ENSURE FULL AND PROPER PARTICIPATION BEFORE THE SAID AUTHORITY. IT IS MADE CLEAR THAT IN THE EVENTUALITY OF ABUSE OF THE TRUST REPOSED THE L D. CIT(APPEALS) WOULD BE AT LIBERTY TO PASS AN ORDER ON THE BASIS OF MATE RIAL AVAILABLE ON RECORD. 7. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT T HE TIME OF HEARING ITSELF. 8. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT 20/10/2021 SD/- (DIVA SIN GH) JUDICIAL MEMBER *KAVITA ARORA, SPS COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT CONCERNED BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASSISTANT REGISTRAR, ITAT DELHI BENCHES: DELHI.