Shiv Mohan Sharma, Gautam Budh Nagar V. ITO WARD - 3(4), Gautam Budh Nagar

ITA 6813/DEL/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 6448 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-02-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 16-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES SMC-1 : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA.NO.6813/DEL./2019 ASSESSMENT YEAR 2009-2010 SHRI SHIV MOHAN SHARMA, TEACHERS COLONY, BEHIND OLD COLD STORAGE, BAGH BALANA, DADRI, NOIDA, G.B. NAGAR (U.P.) 203207 PAN AGGPS2897D [ VS. THE INCOME TAX OFFICER, WARD-3(4), A-2D, SECTOR-24, NOIDA, G.B. NAGAR (U.P.) 201301 (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI MANOJ KUMAR, C.A. FOR REVENUE : SHRI RAJESH KUMAR, SR. DR DATE OF HEARING : 02.02.2021 DATE OF PRONOUNCEMENT : 02.02.2021 ORDER PER BHAVNESH SAINI, J.M. THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-1, NEW DELHI, DATED 31.12.2018, FOR THE A.Y. 2009-2010. 2 ITA.NO.6813/DEL./2019 SHRI SHIV MOHAN SHARMA, NOIDA G B NAGAR, U.P. 2. WE HAVE HEARD THE LEARNED REPRESENTATIVE OF BOTH THE PARTIES THROUGH VIDEO CONFERENCING AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW. 3. IN THIS CASE THE A.O. PASSED THE EX-PARTE ASSESSMENT ORDER UNDER SECTION 144/148 OF THE I.T. ACT, 1961, WHICH WAS CHALLENGED BEFORE THE LD. CIT(A). THE LD. CIT(A) NOTED THAT APPEAL IS FILED ONLINE, HOWEVER, ONLY FORM NO.35 IS AVAILABLE ON THE OFFICIAL WEBSITE OF THE DEPARTMENT WHICH HAVE BEEN DOWNLOADED. THE LD. CIT(A) FURTHER NOTED THAT THE IMPUGNED ASSESSMENT ORDER, COPY OF THE DEMAND NOTICE AND CHALLAN FOR FEE DEPOSITED FOR FILING THE APPEAL BEFORE HIM ARE NOT AVAILABLE. THE LD. CIT(A) ISSUED NOTICES TO THE ASSESSEE THROUGH POST ASKING THE ASSESSEE TO FILE THESE DOCUMENTS ON RECORD. IT IS NOTED THAT THE NOTICE SENT TO THE ASSESSEE THROUGH POST RETURNED UN-SERVED. THE LD. CIT(A) IN THE ABSENCE OF ASSESSEE AND IN THE ABSENCE OF THE ABOVE REQUISITE DOCUMENTS, DISMISSED THE APPEAL OF ASSESSEE. 3 ITA.NO.6813/DEL./2019 SHRI SHIV MOHAN SHARMA, NOIDA G B NAGAR, U.P. 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE ARE OF THE VIEW THAT THE MATTER REQUIRES RE-CONSIDERATION AT THE LEVEL OF THE LD. CIT(A). THE IMPUGNED ORDER CLEARLY SHOW THAT NO NOTICE HAVE BEEN SERVED UPON THE ASSESSEE FOR HEARING OF THE APPEAL. LEARNED COUNSEL FOR THE ASSESSEE ALSO SUBMITTED THAT ASSESSEE HAS NOT RECEIVED ANY NOTICE FOR HEARING OF THE APPEAL. IT WOULD, THEREFORE, SHOW THAT NO OPPORTUNITY OF BEING HEARD HAVE BEEN GIVEN TO THE ASSESSEE FOR HEARING OF THE APPEAL. ITS VIOLATES PRINCIPLES OF NATURAL JUSTICE, THEREFORE, THE IMPUGNED ORDER CANNOT BE SUSTAINED IN LAW. IN VIEW OF THE ABOVE, WE SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(A) AND RESTORE THE APPEAL OF ASSESSEE TO THE FILE OF LD. CIT(A)-1, NOIDA WITH A DIRECTION TO RE-DECIDE THE APPEAL OF ASSESSEE AS PER LAW, ON MERITS, BY GIVING REASONABLE, SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, APPEAL OF THE ASSESSEE ALLOWED FOR STATISTICAL PURPOSES. 4 ITA.NO.6813/DEL./2019 SHRI SHIV MOHAN SHARMA, NOIDA G B NAGAR, U.P. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (PRASHANT MAHARISHI) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DELHI, DATED 02 ND FEBRUARY, 2021 VBP/- COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT SMC - 1 BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASSISTANT REGISTRAR : ITAT DELHI BENCHES : DELHI.