GULSHAN KUMAR,HARYANA vs. ITO, WARD-2, HARYANA
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Income Tax Appellate Tribunal, DELHI BENCH ‘SMC’, NEW DELHI
Before: SMT DIVA SINGH
PER DIVA SINGH, JM
The present appeal has been filed by the assessee wherein the correctness of the order dated 23.03.2022 passed by NFAC, Delhi as First Appellate Authority, pertaining to A.Y.2012-13 assessment year is assailed on various grounds including ground No.3 which reads as under :-
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“3. The Ld. Commissioner of Income Tax (Appeals) has erred is not providing proper opportunity to file submissions and details. Some of the notices were not received by appellant as portal was not functioning smoothly.”
At the time of hearing an adjournment application was moved on
behalf of the assessee seeking time. However, considering the record
the said request was rejected and it was deemed appropriate to
proceed with the present appeal exparte qua the assessee appellant on
merits. After hearing the Ld. Sr. DR.
The Ld. Sr. DR on relying upon the order.
A perusal of the record shows that the appeal filed by the
assessee was decided without hearing the assessee. This fact is
evident from para-2 of the impugned order. It is further seen that the
addition made in the assessment order was confirmed relying on the
position of law as considered by the Hon’ble Madya Pradesh High Court
in the case of TukojiraoHolkar Vs. CWT223 ITR 480 and CIT Vs.
Bhattacharjee 118 ITR 461 (SC) for non representation. On a perusal
of page-2 of the impugned order it is seen that apart from challenging
the order on the merits of the addition the assessee had also raised
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jurisdictional grounds vide No.1, 2 and 3. The issue as per page-4 and
para 6 of the impugned has been considered to be “general in nature”
holding that no specific adjudication was required. The manner of
decision making and passing the order it is seen is contrary to the well
settled legal jurisprudence. The challenge to the assumption of
jurisdiction has to be specifically met. The statue requires the First
Appellate Authority to address the issues agitated by bringing on record
the reasons for the conclusions drawn. Specific attention is invited to
sub section (6) of Section 250 of the IT Act. Thus, holding that the
order under challenge is passed in violation of the statutory remit the
order is set aside. Accordingly, in order to set right this statutory deficit
the impugned order is set aside back to the file of the First Appellate
Authority with the direction to pass a speaking order in accordance with
law after giving the assessee a reasonable opportunity of being heard
to the assessee.
While so directing, it is made clear that the assessee in its own
interest is advised to cooperate fully and fairly before the First Appellate
Authority and not to abuse the trust reposed in him. At the same time it
is made clear that in the eventuality of the abuse of the trust reposed
the Ld.CIT(A) shall be at liberty to pass an order in accordance with law
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on the basis of material available on record. Said order was
pronounced in the open court at the time of hearing itself.
Accordingly, the appeal filed by the assessee is allowed for
statistical purposes.
Said order was pronounced in the open court on 28th October,
2022.
Sd/- (DIVA SINGH) JUDICIAL MEMBER *NEHA, Sr. Private Secretarty* Date:- 28.10.2022
