Brij Bhushan Kumar, Ghaziabad V. ITO, Ward- 1(5), Ghaziabad

ITA 8057/DEL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6342 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 19-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D, NEW DELHI , , . . , , BEFORE MS. SUSHMA CHOWLA, VICE PRESIDENT & SH. N.K. BILLAIYA, ACCOUNTANT MEMBER . .. . / ITA NO.8057/DEL/2018 / ASSESSMENT YEAR 2009-10 BRIJ BHUSHAN KUMAR, CH. NO.206-207, ANSAL SATYAM, RDC, RAJNAGAR, GHAZIABAD, UTTAR PRADESH-201002, PAN-ABKPK7694M .......... /APPELLANT VS ITO, WARD-1(5), HAPUR CHUNGI, GHAZIABAD, . / RESPONDENT / APPELLANT BY : SH. AKHILESH KUMAR / RESPONDENT BY : SH. PRADEEP SINGH GAUTAM, SR. D R / DATE OF HEARING: 13.01.2020 / DATE OF PRONOUNCEMENT: 27.01.2020 / ORDER PER SUSHMA CHOWLA, VP THE APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORD ER OF CIT(A), GHAZIABAD, DATED 04/09/2018, RELATING TO ASSESSMENT YEAR 2009-10. 2 ITA NO.8057/DEL/2018 ASSESSMENT YEAR: 2009-10 2. IN THIS APPEAL, THE ASSESSEE IS AGGRIEVED BY THE ORDER OF CIT(A) FOR DECIDING THE APPEAL EX-PARTE QUA THE ASSESSEE AND WITHOUT GOING INTO THE MERITS OF THE ADDITION. 3. THE LEARNED AR FOR THE ASSESSEE POINTED OUT THAT THE CIT(A) HAS PASSED THE EX-PARTE ORDER WITHOUT ALLOWING SUFFICIENT OPPORTUNITY OF H EARING AND WITHOUT GOING INTO THE MERITS OF THE CASE. 4. THE LEARNED DR FOR THE REVENUE ON THE OTHER HAND POINTED OUT THAT SUFFICIENT OPPORTUNITY HAS BEEN AFFORDED TO THE ASS ESSEE. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. UNDER THE PROVISIONS OF SECTION 250(6) OF THE INCOME TAX ACT, 1961 (IN SHORT ACT), IT IS INCUMBENT UPON THE CIT(A) TO DECIDE THE APPEA L AFTER HEARING THE PARTIES AND STATE THE POINTS FOR DETERMINATION, THE DECISION THEREON AND ALSO THE REASONS FOR THE DECISION. WHILE DECIDING T HE APPEAL, CIT(A) HAS NO POWER TO DISMISS THE APPEAL FOR NON PROSECUTION BY RELYING ON THE RATIO/S LAID DOWN IN CIT VS. B.N. BHATTACHARYA & ANOTHER 11 8 ITR 461 (SC) AND LATE TUKOJI RAO HOLKER VS. CWT 223 ITR 480 (MP). IN THESE FACTS AND CIRCUMSTANCES, WHERE THE CIT(A) HAD DISMISSED THE A PPEAL BY APPLYING THE ABOVE SAID RATIOS, THE ORDER OF THE LEARNED CIT(A) SUFFERS FROM INFIRMITY. THE CIT(A) WHILE DECIDING THE ISSUE ON MERITS HAVE ALSO TO GIVE REASONS FOR COMING TO THE CONCLUSION AND IN THE ABSENCE OF THE SAME, THE ORDER OF THE CIT(A) AGAIN SUFFERS FROM INFIRMITY. IN THE PRESENT APPEAL, WE FIND THAT THE 3 ITA NO.8057/DEL/2018 ASSESSMENT YEAR: 2009-10 CIT(A) HAS DISMISSED THE APPEAL EX-PARTE QUA THE ASSESSEE AND HAD FAILED TO DECIDE THE APPEAL BY PASSING REASONED ASSESSMENT OR DER. 6. ACCORDINGLY, WE SET ASIDE THE MATTER BACK TO THE FILE OF THE CIT(A) WITH DIRECTION TO THE CIT(A) TO DECIDE THE ISSUE ON MERI TS BY A REASONED ORDER, AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING T O THE ASSESSEE. FURTHER THE ASSESSEE IS ALSO DIRECTED TO APPEAR BEFORE THE CIT(A) AND PARTICIPATE IN THE APPELLATE PROCEEDINGS. THE APPEAL IS THUS DEC IDED ON THIS PRELIMINARY ISSUE WITHOUT GOING INTO THE MERITS OF THE ADDITION . 7. THE LD. AR FOR THE ASSESSEE POINTED OUT THAT THE RE WAS DELAY IN E- FILING OF APPEAL BEFORE THE CIT(A) BY FIVE MONTHS. THE LD. AR FOR THE ASSESSEE HAS POINTED OUT THAT THE MANUAL APPEAL IS FILED IN TIME AND THE CIT(A) VIDE SEPARATE ORDER HAS DISMISSED THE SAID M ANUAL APPEAL FILED BY THE ASSESSEE OBSERVING THAT WHENEVER THE ASSESSEE E -FILES THE APPEAL, THE SAME SHALL BE TAKEN ON RECORD. HOWEVER, WHILE DECID ING THE APPEAL WHICH WAS ELECTRONICALLY FILED BY THE ASSESSEE, THE DELAY OF FIVE MONTHS HAS NOT BEEN CONDONED AND THE APPEAL IS DECIDED EX-PARTE QU A THE ASSESSEE. WE FIND NO MERIT IN THE SAID ORDER OF THE CIT(A), WE A CCORDINGLY CONDONE THE DELAY OF FIVE MONTHS AND PLACE THE APPEAL BEFORE TH E CIT(A) TO DECIDE THE ISSUE ON MERITS IN ACCORDANCE WITH LAW. 8. HENCE THIS APPEAL IS RESTORED BACK TO THE FILE O F CIT(A) TO DECIDE THE ISSUE ON MERITS AFTER AFFORDING REASONABLE OPPORTUN ITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO COMPLY W ITH NOTICES ISSUED BY THE 4 ITA NO.8057/DEL/2018 ASSESSMENT YEAR: 2009-10 CIT(A). THE PRELIMINARY ISSUE RAISED IN THIS APPEAL IS THUS DECIDED IN FAVOUR OF ASSESSEE. SINCE THE APPEAL IS BEING DECIDED ON T HE PRELIMINARY ISSUE, WE ARE NOT ADDRESSING THE ISSUE RAISED ON MERIT. 9. IN THE RESULT, THIS APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT 27 TH DAY OF JANUARY, 2020. SD/- SD/- (N. K. BILLAIYA) (SUSHMA CHOWLA) /ACCOUNTANT MEMBER /VICE PRESIDENT / DATED : 27 TH JANUARY, 2020 . S. SHEKHAR, SR. P.S. / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / THE PR. CIT 5. 6. , , / DR, ITAT, DELHI ! / GUARD FILE. / BY ORDER , '( , , ASSISTANT REGISTRAR, ITAT, DELHI