Subject: DR relied upon the orders of the authorities below and not objected the request of the ld.
Referred Sections:
Section 147 of theIncome Tax Act, 1961
Section 147 to 151 of the Income Tax Act.
Section 144 of the I.T. Act
Section 148
Section 69 of the Income Tax Act, 1961
Referred Cases / Judgments
M/s Sahara India (Farms) Vs. CIT & Anr. in [2008] 300 ITR 403
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH: `SMC' NEW DELHI
BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER
I.T.A .No.-8210/Del/2018
(ASSESSMENT YEAR-2009-10)
BUDHNESH KUMAR, vs ITO, WARD 5(1),
VILLAGE AGROLA, LONI, GHAZIABAD
GHAZIABAD UTTAR PRADESH
UTTAR PRADESH 201102
(PAN: ASRPK2149K)
(APPELLANT) (RESPONDENT)
Appellant by Sh. Pratap Gupta, CA
Respondent by Shri S.L. Anuragi, Sr. DR
ORDER
This appeal filed by the Assessee is directed against the
order dated 07.09.2018 of the Ld. CIT(Appeals), Ghaziabad
relevant to assessment year 2009-10 on the following grounds of
appeal: -
1) That Ld. CIT(A) without appreciating the correct fats of
the case and giving proper opportunity of being heard is
not justified in law and facts and circumstances of the
case in dismissing the appeal filed by appellant as non
set being defective due to appeal filed by the appellant
allegedly late by more than 8 months ignoring the date of
service on 2.5.2017 mentioned in column no. 2(c) of
appeal form no. 35 and appeal was filed within the
stipulated period of 30 days from the date of service of
order.
2) That Ld. CIT(A) without appreciating the correct fact of
the case and giving proper opportunity of being heard is
not justified in law and facts of the circumstances of the
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case is not justified in not deciding the appeal of the
appellant on the merits of the case which is against the
principle of natural justice and order of CIT(A) needs to
be set aside.
3) With prejudice to ground no. 1 and 2, AO is not justified
in law and facts and circumstances of the case in
reopening of assessment under section 147 of the
Income Tax Act, 1961 without complying with the
provision of section 147 to 151 of the Income Tax Act.
(This is legal ground being taken for the first time before
Hon'ble ITAT).
4) That order passed under section 144 of the I.T. Act
without serving the notice under section 148 and other
statutory notices is bad in law and should be quashed.
5) Without prejudice to the above grounds of appeal taken,
the AO without appreciating the correct facts of the case
and giving proper opportunity of being heard and
complying with the provision of section 144 is not
justified in law and facts and circumstances of the case
in making the addition of Rs. 2268000/- under section
69 of the Income Tax Act, 1961 and ignoring the return
of income filed and thus order so passed needs to be set
aside.
6) Appellant has every right to make, add, delete, modify,
or alter any grounds of appeal at the time of hearing.
2. Facts narrated by the revenue authorities are not disputed by
both the parties, hence, the same are not repeated here for the
sake of convenience.
3. Ld. Counsel of the assessee stated that Ld. CIT(A) as well as
AO have not given proper opportunity to assessee to present his
case and passed the exparte orders, which is against the principle
of natural justice. It was further submitted that Ld. CIT(A)
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without appreciating the correct facts of the case dismissed the
appeal filed by assessee as non-set being defective due to appeal
filed by the appellant allegedly late by more than 8 months
ignoring the date of service on 2.5.2017 mentioned in column no.
2(c) of appeal form no. 35 and appeal was filed within the
stipulated period of 30 days from the date of service of order.
Hence, he requested that the issues in dispute may be set aside to
the file of the Ld. CIT(A) to decide the same afresh, after giving
adequate opportunity of being heard to the assessee.
4. On the other hand, Ld. DR relied upon the orders of the
authorities below and not objected the request of the ld. counsel
for the assessee.
5. After hearing both the parties and perusing the impugned
order, I find that both the lower authorities i.e. AO as well as Ld.
CIT(A) have passed the exparte order. I find considerable
cogency in the contention of the Ld. Counsel of the assessee that
Ld. CIT(A) without appreciating the correct facts of the case has
dismissed the appeal filed by assessee as non-set being defective
due to appeal filed by the assessee allegedly late by more than 8
months ignoring the date of service on 02.5.2017 mentioned in
column no. 2(c) of appeal Form no. 35, which reveals that the
appeal was filed within the stipulated period of 30 days from the
date of service of order. Hence, in my considered view, the
issues in dispute needs to be set aside to the file of the Ld.
CIT(A) to decide the same afresh on merits, after giving adequate
opportunity of being heard to the, keeping in mind the facts and
circumstances of the case, as discussed above in this para.
5.1 In this regard, I draw support from Hon'ble Apex Court in
the case M/s Sahara India (Farms) Vs. CIT & Anr. in [2008] 300
ITR 403 wherein it has held that even "an administrative order
has to be consistent with the rules of natural justice".
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6. In the background of the aforesaid discussions and
respectfully following the precedent, as aforesaid, I remit
back the issues in dispute to the files of the Ld. Commissioner
of Income Tax (Appeals) to consider each and every aspects
of the issues involved in the Appeal and decide the same
afresh and pass a speaking order by consider all the
evidences/documents, keeping in view of the aforesaid facts
and circumstances of the case as discussed in para 5 above.
Needless to add that the assessee should be given adequate
opportunity of being heard. However, the Assessee is directed
to file all the evidences/documents etc. before him to
substantiate his case. Assessee is also directed not to take any
unnecessary adjournment in the proceedings.
7. In the result, the Appeal filed by the Assessee stands
allowed for statistical purpose.
Order pronounced on 15/05/2019. Sd/-
[H.S. SIDHU]
JUDICIAL MEMBER
Dated: 15/05/2019
*SR BHATNAGAR*
Copy forwarded to: -
1. Appellant
2. Respondent
3. CIT
4. CIT(A)
5. DR, ITAT TRUE COPY By Order,
ASSISTANT REGISTRAR
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