Hari Sharan Devgan, E-2/11, Ganga Triveni Apartments, Sector-9, Rohini, Delhi-110085 Vs Income Tax Officer, Ward 21(3), New Delhi. |
ITA No. 2213/D/2013
Asstt.Year: 2009-10
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH `C' NEW DELHI
BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER
AND
SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER
I.T.A.No.2213/Del/2013
Assessment Year : 2009-10
Hari Sharan Devgan, vs Income Tax Officer,
E-2/11, Ganga Triveni Ward 21(3), New Delhi.
Apartments,
Sector-9, Rohini,
Delhi-110085
(Appellant) (Respondent)
Appellant by: Shri Ajay K. Agarwal, CA
Respondent by : Shri T. Vasanthan, Sr. DR
Date of Hearing: 10.3.2015
Date of pronouncement:
ORDER
PER CHANDRA MOHAN GARG, JUDICIAL MEMBER
The above appeal has been preferred by the assessee against the order of
the CIT(A)-XXII, New Delhi dated 29.01.2013 in Appeal No. 223/11-12 for
AY 2009-10.
2. First of all, we take up ground no. 5 of the assessee which reads as
under:-
"5. That the ld. CIT(A) dismissed the appeal without
considering the detailed statement of facts regarding non-
applicability of Sec 68 and applicability of Sec 44AF submitted
with Form No.35 whereas notice of CIT(A) us/ 250 clearly
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Asstt.Year: 2009-10
states that the appeal will be decided on the written
submission in the case of non-appearance".
3. Apropos ground no.5, ld. AR submitted that the AO passed ex parte order
u/s 144 of the Act on 21.12.2011 without affording due opportunity of hearing
for the assessee. The ld. AR further pointed out that the AO made an
unsustainable and unjustified addition u/s 68 of the Act without any basis. Ld.
AR further contended that the aggrieved assessee preferred an appeal before the
CIT(A) which was also decided ex parte without affording due opportunity of
hearing and without considering the detailed statement of facts regarding non-
applicability of section 68 of the Act and applicability of section 44AF of the
Act submitted along with Form No.35 of the Act. Ld. AR further pointed out
that as per provisions of section 250 of the Act, appeal shall be decided on
written submissions and explanation of the assessee in the case of non-
appearance of the assessee and his representative during the first appellate
proceedings. Ld. DR vehemently contended that the authorities below clearly
violated the principles of natural justice and passed assessment and impugned
order without affording due opportunity of hearing for the assessee, therefore,
the same be set aside by restoring the case to the assessment stage to the file of
AO.
4. Ld. DR replied that if despite due service of notice, assessee and his
representative are not appearing during the assessment proceedings, then the
AO had no option but to complete the proceedings on the basis of material
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available on record before him. Ld. DR fairly accepted that the CIT(A) was
duty bound to adjudicate the issue on the basis of written submissions and
explanation filed by the assessee during first appellate proceedings and also on
the basis of assessment records but the CIT(A) has passed a brief and cryptic
order by applying decision of ITAT Delhi in the case of CIT vs Multiplan India
(P) Ltd. 38 ITD 230 (Delhi). Ld. DR finally submitted that the department has
no serious objection if the matter is restored to the file of AO for de novo
framing of assessment.
5. On careful consideration of above submissions, we are of the considered
view that the asseessee was not granted due opportunity of hearing before the
authorities below which is a clear violation of principles of natural justice. We
also note that the CIT(A) has dismissed the appeal of the assessee without
addressing and adjudicating the issues raised by the assessee in the grounds
placed during first appellate proceedings and as per provisions of section 250 of
the Act, the CIT(A) is duty bound to address and adjudicate all the issues on
merits on the basis of material available on record even in the situation of
absence of assessee and his representative. The CIT(A) is not empowered to
dismiss the appeal for non-prosecution by following the order of the ITAT
Delhi in the case of Multiplan (supra). Hence, we are of the considered opinion
that the authorities below framed ex parte assessment and dismissed the appeal
of the assessee ex parte without adjudicating the grounds raised by the assessee
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before the CIT(A). Therefore, assessment order as well as impugned order are
set aside and the case is restored to the file of AO for fresh de novo framing of
assessment after affording due opportunity of hearing for the assessee.
Needless to say that the assessee shall cooperate with the assessee during fresh
assessment proceedings. Accordingly, ground no. 5 of the assessee is deemed
to be allowed for statistical purposes.
6. Since by the earlier part of this order, we have restored the case to the file
of AO for a fresh framing of assessment, therefore, other grounds raised by the
assessee do not survive for adjudication on merits and we dismiss the same as
being infructuous.
7. In the result, the appeal of the assessee is deemed to be allowed for
statistical purposes.
Order pronounced in the open court on 16.3.2015.
Sd/- Sd/-
(S. V. MEHROTRA) (CHANDRAMOHAN GARG)
ACCOUNTANT MEMBER JUDICIAL MEMBER
DT. 16th MARCH 2015
`GS'
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Asstt.Year: 2009-10
Copy forwarded to:-
1. Appellant
2. Respondent
3. C.I.T.(A)
4. C.I.T.
5. DR
By Order
Asstt.Registrar
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