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Budhnesh Kumar, Village Agrola, Loni, Ghaziabad Uttar Pradesh 201102 vs. ITO, Ward 5(1), Ghaziabad Uttar Pradesh
May, 16th 2019

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
                                                                 2







        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)
                                                                3


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". 4 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 5
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