Dharampal Singh, Gautam Budh Nagar V. ITO, Ward- 1(3), Noida

ITA 7274/DEL/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5824 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 06-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R MISHRA
• Assessee Lawyers: K P GARG
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: SMC : NEW DELHI BEFORE SHRI R.S. SYAL, VICE PRESIDENT ITA NO . 7274 /DEL/ 20 1 7 ASSESSMENT YEAR: 20 09 - 10 DHARAMPAL SINGH VILLAGE SADDARPUR, TEHSIL DADRI, DISTT. SECTOR 45, GAUTAM BUDDH NAGAR PAN: ATQPS0452D VS. ITO WARD 1 ( 3 ), NOIDA ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY : SH. K.P. GARG , CA DEPARTMENT BY : SH. B.R. MISHRA, SR. DR DATE OF HEARING : 27 .0 6 . 201 8 DATE OF PRONOUNCEMENT : 28 . 0 6 . 201 8 ORDER PER R.S. SYAL, VP: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDE R PASSED BY THE LEARNED CIT(A) - I , NOIDA ON 23.11.2017 IN RELATION TO ASSESSMENT YEAR 2009 - 10 . 2. THE ASSESSEE IN THIS APPEAL HAS ASSAILED THE LEGAL TENABILITY OF THE IMPUGNED ORDER IN RESTORING THE MATTER TO THE AO AFTER ANNULLING THE ASSESSMENT. ITA NO. 7274 /DEL/201 7 2 3 . I HAVE HEARD BOTH THE SIDES AND PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS A TWO - PAGED ORDER BY THE LEARNED CIT(A) . T HE FIRST PAGE RECORDS THE SUBMISSION S MADE ON BEHALF OF THE ASSESSEE. P AGE 2 OF THE IMPUGNED ORDER READ S AS UNDER: - FROM THE IMPUGNED ORDER IT IS SEEN THAT THE LD. ASSESSING OFFICER HAD MADE NO CLAIMS AT ALL OF ASSUMING JURISDICTION U/S. 143(2) OF I.T. ACT, 1961. WITHOUT INITIATING PROCEEDINGS U/S 143(2) AN ASSESSMENT ORDER CANNOT BE FRAM ED AND THE IMPUGNED ASSESSMENT ORDER HAVING BEEN FRAMED BY THE LD. ASSESSING OFFICER WITHOUT ASSUMING JURISDICTION U/S. 143(2) IS BAD IN LAW AND CANNOT BE SUSTAINED IN THE EYES OF THE LAW. THE SAME IS THEREFORE ANNULLED. HOWEVER, THE FRAMING OF ASSESSMENT IN THIS CASE IS AMENABLE TO THE JURISDICTION OF SECTION 150 I.T. ACT, 1961 AND REFRAME THE ASSESSMENT AFTER FOLLOWING THE DUE PROCEDURE OF LAW AND AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE APPELLANT. THE APPEAL STANDS DISPOSED IN TERMS OF THE ABOVE. 4 . IT IS APPARENT FROM THE ABOVE EXTRACTED FINDING RETURNED BY THE LEARNED CIT(A) THAT THE ASSESSMENT ORDER WAS PASSED BY THE ASSESSING OFFICER WITHOUT ASSUMING JURISDICTION UNDER SECTION 143(2). THAT IS HOW , THE ASSESSMENT WAS ANNULLED. HOWEVER, I N THE LATER PART OF THE PARA, THE LEARNED CIT(A) HAS DIRECTED THE ASSESSING OFFICER TO REFRAME THE ASSESSMENT ORDER AFTER ALLOWING DUE OPPORTUNITY TO THE ASSESSEE. 5. IN MY CONSIDERED OPINION, THIS ACTION OF THE LD. FIRST APPELLATE AUTHORITY HAS NO SANCTION OF LAW. POWERS OF CIT(A) HAVE BEEN SET OUT IN SECTION 251 OF ITA NO. 7274 /DEL/201 7 3 THE ACT. CLAUSE (A) OF SUB - SECTION OF SECTION 251 PROVIDES THAT IN DISPOSING OF AN APPEAL, THE COMMISSIONER (APPEAL) MAY CONFIRM, REDUCE, ENHANCE O R ANNUL THE ASSESSMENT . IT IS PERTINENT TO MENTION THAT EARLIER THE CIT(A) ALSO HAD THE POWER TO SET ASIDE THE ASSESSMENT AND DIRECTING THE ASSESSING OFFICER TO MAKE A FRESH ASSESSMENT . SUCH A PROVISION CAME TO BE OMITTED BY THE FINANCE ACT, 2001 W.E.F. 1 . 6.2001. THUS, THE CIT(A) HAS INSTANTLY NO POWER TO SEND THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR M AKING A FRESH DECISION ON THE ISSUE. HE CAN SIMPLY CONFIRM, REDUCE, ENHANCE OR ANNUL THE ASSESSMENT. SINCE THE LEARNED CIT(A) IN THE INSTANT CASE HAS TRANSGRESSED THE POWER GIVEN TO HIM UNDER SECTION 251(1) BY REMITTING THE MATTER BACK TO THE ASSESSING OFFICER WITH A DIRECTION TO REFRAM E THE ASSESSMENT AFRESH, SUCH AN ACTION CANNOT BE COUNTENANCED. I, THEREFORE, SET ASIDE THE I MPUGNED ORDER TO THIS EXTENT AND UPHOLD THE PORTION UP TO WHICH TH E ASSESSMENT HAS BEEN ANNULLED AS NOTHING HAS BEEN BROUGHT ON RECORD TO DEMONSTRATE THAT THE REVENUE HAS NOT ACCEPTED THE IMPUGNED ORDER TO THIS EXTENT. 6 . IN THE RESULT, THE APPEAL IS ALLOWED. ITA NO. 7274 /DEL/201 7 4 THE ORDER PRONOUNCED IN THE OPEN COURT ON 2 8 TH JUNE , 2018. SD/ - [ R.S. SYAL ] VICE PRESIDENT DATED - 2 8 TH JUNE , 201 8 . SH COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT (A) 5 . DR, ITAT AR, ITAT, NEW DELHI. DATE INITIAL 1. DATE OF DICTATION 2 7 .6.2018 PS 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 2 7 .6.2018 PS 3. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER JM/AM 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S. / P.S. JM/AM 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT PS/PS 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S. / P.S. PS 7. DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 2 8 .6.2018 PS 8. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 9. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER 11. DATE OF DISPATCH OF THE ORDER *