Vijay Kadan, New Delhi V. ACIT, Circle-8(2), New Delhi

ITA 973/DEL/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8995 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2016-2017
• Appeal Filed On: 04-03-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAGDISH SINGH DAHIYA
• Keywords: Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH FRIDAY-A NEW DLEHI BEFORE SHRI G.S. PANNU, VICE PRESIDENT AND SHRI K. NARASIMHA CHARY, JUDICIAL MEMBER TA.NO 973/DEL/2020 ASSESSMENT YEAR: 2016-17 VIJAY KADAN, 186, MUNRIKA VIHAR, NEW DELHI-110067 PAN-AFRPK9736R VS. ACIT-8(2), C.R. BUILDING, I.P. ESTATE, ITO, NEW DELHI-110002 (APPLICANT) (RESPONDENT) APPELLANT BY : SHRI PIYUSH KAUSHIK, ADVOCA TE RESPONDENT BY : SH. JAGDISH SINGH DAHIYA, S R. DR. DATE OF HEARING : 31/07/2020 DATE OF ORDER : 31/07/2020 ORDER PER K. NARASIMHA CHARY, J.M. THIS IS AN APPEAL FILED BY ONE SH. VIJAY KADAN (TH E ASSESSEE) CHALLENGING THE ORDER DATED 11/02/2020 IN APPEAL NO . 3/10330/18-19, FOR THE ASSESSMENT YEAR 2016-17PASSED BY THE LEARNED CO MMISSIONER OF INCOME TAX (APPEALS)-3, NEW DELHI (LD. CIT(A)). 2. AT THE OUTSET IT IS BROUGHT TO OUR NOTICE BY THE LD. AR THAT THE IMPUGNED ORDER IS AN EX PARTE ORDER PASSED BY THE L D. CIT(A) OBSERVING THAT, THOUGH REASONABLE NUMBER OF OPPORTUNITIES WER E PROVIDED TO THE ASSESSEE, THE ASSESSEE HAD CHOSEN NOT TO AVAIL ANY OF THOSE THINGS, NOR ITA NO.973/DEL/2020 ASSESSMENT YEAR-2016-17 2 ANY WRITTEN SUBMISSIONS WERE FILED AND THEREFORE, L D. CIT(A) DREW AN INFERENCE THAT THE ASSESSEE WAS NOT KEEN TO PURSUE THE APPEAL AND NO MATERIAL/AUGMENTS WERE BROUGHT ON RECORD BY THE ASS ESSEE AGAINST THE ASSESSMENT ORDER. 3. LD. AR SUBMITS THAT, AS A MATTER OF FACT, THE AS SESSEE COULD NOT ENTER APPEARANCE BEFORE THE LD. CIT(A) ON THE DATES OF HEARING, BUT IT WAS NEITHER WANTON NOR WILFUL AND WAS SUPPORTED BY VALI D REASONS. AN AFFIDAVIT IS A SWORN BY THE ASSESSEE TO THE FACT TH AT THE ASSESSEE HAD BEEN SUFFERING WITH ACUTE SERIOUS MEDICAL CONDITION IN T HE FORM OF BRANCHIAL ASMA WITH LOW FEV 1 (48%) AND FEC (58%) RATIOS, BRE ATHLESSNESS AND WHISTLING SOUNDS IN THE CHEST CAUSED BY THE PATCHES /SOFT NODULES IN THE CHEST. ACCORDING TO THE ASSESSEE HE IS ALSO SUFFERI NG FROM ATROPHIC KIDNEY WHICH WAS DAMAGED DUE TO THE INFECTION AND SHRIVELL ED TO BECOME NON- FUNCTIONAL. ALL THESE FACTORS, ACCORDING TO THE ASS ESSEE, PREVENTED HIM FROM ENTERING EITHER PERSONALLY OR THROUGH AN AUTHO RISED REPRESENTATIVE, BEFORE THE LD. CIT(A). 4. IT COULD BE SEEN FROM THE RECORD THAT THE IMPUGN ED ORDER WAS PASSED EX PARTE DUE TO THE ABSENCE OF THE ASSESSEE. THERE IS NO REASON NOT TO ACCEPT THIS SWORN AFFIDAVIT OF THE ASSESSEE WHEREIN HE HAD TAKEN THE HEALTH REASONS FOR HIS NON-PROSECUTING THE MATT ER BEFORE THE LD. CIT(A). LD. DR COULD NOT CONTROVERT ANY OF THE CONT ENTIONS RAISED BY THE ASSESSEE IN THE AFFIDAVIT. FURTHER THE ASSESSEE DOE S NOT STAND TO GAIN BY ALLOWING THE APPEAL TO BE DISMISSED FOR NON-PROSECU TION. BASING ON THE CONTENTS OF AFFIDAVIT FILED BY THE ASSESSEE COUPLED WITH CIRCUMSTANCES, WHICH GO UNCONTROVERTED, WE ARE OF THE CONSIDERED O PINION THAT THE ABSENCE OF THE ASSESSEE, EITHER PERSONALLY OR THROU GH AN AUTHORISED ITA NO.973/DEL/2020 ASSESSMENT YEAR-2016-17 3 REPRESENTATIVE, BEFORE THE LD. CIT(A) IS SUPPORTED BY REASONS AND THE SAME COULD BE CONDONED. SINCE THE IMPUGNED ORDER WA S PASSED EX PARTE WITHOUT HEARING ASSESSEE, WE FIND THAT THE IMPUGNED ORDER IS LIABLE TO BE SET-ASIDE AND THE MATTER HAS TO GO BACK TO THE FILE OF THE LD. CIT(A) FOR FRESH DISPOSAL ACCORDING TO LAW, AFTER AFFORDING AN OPPORTUNITY TO THE ASSESSEE TO PUT FORTH HIS CASE. 5. WITH THIS VIEW OF THE MATTER, WE SET ASIDE THE I MPUGNED ORDER AND REMAND THE MATTER TO THE FILE OF THE LD. CIT(A) FOR FRESH DISPOSAL AFTER GIVING AN OPPORTUNITY TO THE ASSESSEE. IT IS MADE C LEAR THAT THE ASSESSEE SHALL ENTER APPEARANCE BEFORE THE LD. CIT(A) ON ALL THE DATES OF HEARING AND COOPERATE WITH THE DISPOSAL OF THE MATTER ON ME RITS AND IS ONLY A LAST OPPORTUNITY WERE AFFORDING TO THE ASSESSEE. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. PRONOUNCED IN OPEN COURT ON THIS THE 31 ST DAY OF JULY, 2020. SD/ - SD/- (G.S. PANNU) (K. NARASIMHA CHARY) VICE PRESIDENT JUDICIAL MEMBER DATED: 31/07/2020 SHASHI SEKHAR,SR. P.S. COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI