ITO, Ward- 1(1), Noida V. Ashoo Singhal, Gurgaon

ITA 7821/DEL/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5456 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 28-12-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : SMC : NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO.7821/DEL/2017 ASSESSMENT YEAR : 2009-10 INCOME TAX OFFICER, WARD 1(1), A-2/D, AAYAKAR BHAWAN, SECTOR-24, NOIDA- 201 301 (UP) VS. ASHOO SINGHAL, E-1202, BESTECH PARK VIEW SPA, SECTOR-47, GURGAON (PAN: AFUPS4378A) ( APPELLANT ) ( RESPONDENT ) REVENUE B Y : NONE ASSESSEE BY : MS. SHAIFALI & SH. UTKARSH, CA ORDER THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER DATED 30.6.2017 OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-1, NOIDA RELEVANT TO ASSESSMENT YEAR 2009-10. 2. THE GROUNDS RAISED IN THE APPEAL READ AS UNDER:- 1. THAT THE CIT(A) HAS ERRED IN LAW AND ON FACTS BY ANNULLING THE ASSESSMENT ORDER ON GROUND THAT NO NOTICE UNDER SECTION 143(2) WAS ISSUED BEFORE THE COMPLETION OF ASSESSMENT UNDER SECTION 144 OF THE I.T. ACT, 1961. 2 2. THAT THE CIT(A) HAS ERRED IN LAW AND ON FACTS BY IGNORING THE FACTS THAT NO RETURN WAS FILED BY THE ASSESSEE IN RESPONSE TO NOTICE UNDER SECTION 148 AND NOTICE U/S 143(2) IS MANDATORY, WHERE A RETURN HAS BEEN FURNISHED UNDER SECTION 139, OR IN RESPONSE TO A NOTICE UNDER SUB-SECTION (1) OF SECTION 142 OR IN RESPONSE TO NOTICE U/S 148 OF THE I.T. ACT, 1961. 3. THAT THE CIT(A) HAS ERRED IN LAW AND ON FACTS BY IGNORING THE FACT THAT AS PER PROVISION OF SECTION 143(2)(II) THERE IS A TIME LIMIT FOR ISSUANCE OF NOTICE UNDER SECTION 143(2) I.E. SHALL BE SERVED ON THE ASSESSEE BEFORE THE EXPIRY OF SIX MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN IS FURNISHED, BUT IN THE CASE UNDER CONSIDERATION NO RETURN WAS FILED BY THE ASSESSEE. 4. THAT THE CIT(A) HAS ERRED IN LAW AND ON FACTS BY ANNULLING THE ASSESSMENT ORDER AS ON SIMILAR ISSUES HON'BLE ITAT, DELHI BENCH 'SMC', NEW DELHI VIDE ORDER DATED 30/10/2017 IN ITA NO.4310/DE1/2017 IN THE CASE OF SH. SACHIN (PAN-APPPK6176F) FOR A.Y.2008-09 HAS ALLOWED THE APPEAL OF THE REVENUE. 3 5. THE APPELLANT CRAVES TO LEAVE, ADD, ALTER AND AMEND ANY OF THE GROUNDS OF APPEAL ON OR BEFORE HEARING. 6. THAT THE ORDER OF THE LEARNED CIT(A) DESERVES TO BE SET-ASIDE AND THE ORDER OF THE AO BE RESTORED. 3. DURING THE HEARING, LD. SR. DR REQUESTED FOR ADJOURNME NT ON THE GROUND THAT SHE WANTS TO RECUSE HERSELF FROM ARGUING T HE MATTER. AFTER CONSIDERING THE REQUEST OF THE LD. SR. DR, I AM O F THE VIEW THAT LD. SR. DR HAS NOT ESTABLISHED ANY PLAUSIBLE REASONS FOR RECUSING HER FROM ARGUING THE MATTER, THEREFORE, THE REQUEST OF THE LD . SR. DR IS REJECTED AND KEEPING IN VIEW OF THE IMPUGNED ORDER, I AM PROCEEDING TO HEAR THE APPEAL AND DECIDING THE APPEAL EXPARTE QU A REVENUE, AFTER HEARING THE LD. A.R. OF THE ASSESSEE. 4. I HAVE GONE THROUGH THE ORDERS OF THE REVENUE AUTH ORITIES AND THE GROUND RAISED BY THE DEPARTMENT AND ESPECIALLY THE IMPUGNED ORDER DATED 30.6.2017 PASSED BY THE LD. CIT(A)-I, NOI DA. FOR THE SAKE CONVENIENCE, I AM REPRODUCING HEREWITH THE CONT ENTS OF THE IMPUGNED ORDER OF THE LD. CIT(A) AS UNDER:- 1. THE PRESENT APPEAL IS FILED BY THE APPELLANT AGAINST AN ASSESSMENT ORDER DATED 30.11.2016 PASSED BY THE AO U/S. 144 /147 OF THE I.T. ACT, 1961 FOR AY 2009-10 ON A TOTAL INCOME OF RS. 4 38.53.500/- AGAINST NO RETURN OF INCOME FILED BY THE ASSESSEE. AGGRIEVED BY THE SAME THE APPELLANT HAS PREFERRED APPEAL. 2. MS. RITIKA CHHABARA, CA APPEARED AND CANVASSED THE CASE OF THE APPELLANT. 3. THE IMPUGNED ASSESSMENT ORDER HAS BEEN FRAMED WITHOUT ASSUMING JURISDICTION U/S. 143(2) OF I.T. ACT, 1961 AND IS THEREFORE BAD IN LAW. AS ON THE DATE OF FRAMING OF THE UNLAWFUL ASSESSMENT ORDER THE LD. AO WAS OTHERWISE COMPETENT TO FRAME THE ASSESSMENT ORDER IN THE CASE OF THE APPELLANT AFTER ADHERING TO THE CORRECT PRESCRIBED PROCEDURE, THE CASE OF THE REVENUE IS PROTECTED UNDER SECTION 150 OF I.T. ACT, 1961. IN VIEW OF THE IMPUGNED ASSESSMENT ORDER IS THEREFORE DELETED AND THE LD. AO IS DIRECTED TO REFRAME THE ASSESSMENT ORDER AFTER FOLLOWING THE CORRECT PRESCRIBED PROCEDURE AND IN TERMS OF THE JURISDICTION CONFERRED UNDER SECTION 150 OF I.T. ACT, 1961. THE APPEAL OF THE APPELLANT IS DISPOSED IN TERMS OF THE ABOVE. 5. I HAVE ALSO GONE THROUGH THE ASSESSMENT ORDER DAT ED 30.11.2016 PASSED U/S. 147/144 OF THE I.T. ACT, 1961 AND I AM OF THE VIEW THAT AO HAS PASSED THE ORDER U/S. 144 OF THE ACT WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE ASSESSEE AND THE LD. C IT(A) HAS ALSO 5 PASSED A NON-SPEAKING ORDER WHICH I HAVE REPRODUCED AS ABOVE, WHICH IS NOT SUSTAINABLE IN THE EYES OF LAW. THEREFORE, IN THE INTEREST OF JUSTICE, I AM SETTING ASIDE THE IMPUGNED ORDER DATE D 30.6.2017 PASSED BY THE LD. CIT(A) WITH THE DIRECTION TO THE LD. CIT(A) TO PASS A SPEAKING ORDER, AFTER GOING THROUGH THE ASSESSMENT RECO RDS AND GIVE ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT, THE REVENUES APPEAL IS ALLOWED F OR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 02-05-2018. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 02/05/2018 SRBHATNAGAR COPY FORWARDED TO: - 1. ASSESSEE - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES 6