M/S. B.ENGINEERS & BUILDERS LTD.,BHUBANESWAR vs. ACIT, CIRCLE-2(1), BHUBANESWAR

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ITA 76/CTK/2016Status: DisposedITAT Cuttack24 January 2020AY 2005-064 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal condoned the delay and restored the matter to the file of a different CIT(A). The new CIT(A) was directed to pass a speaking and reasoned order after affording a proper opportunity of hearing.

What were the facts?

The assessee's appeal was delayed by 108 days. The CIT(A) passed an ex-parte order without providing a hearing. The same officer who passed the assessment order also passed the impugned order.

What were the issues?

Whether the CIT(A) order is sustainable when passed ex-parte and by the same officer who passed the assessment order.

Which sections of the Income-tax Act were involved?

Section 144

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, CUTTACK BENCH CUTTACK

Before: SHRI C.M. GARG, JM & SHRI L.P. SAHU, AM

For Respondent: Shri M.K.Goutam, CIT-DR
Hearing: 28/01/2020Pronounced: 28/01/2020

Per L.P.Sahu, AM: This is an appeal filed by the assessee against order passed by the CIT(A)-1, Bhubaneswar, dated 10.08.2015 for the assessment year 2005-2006. 2. As per the office note, the appeal of the assessee is delayed by 108 days. In this regard, ld. AR has filed an application for condonation of delay. We have perused the application of the assessee and found that the reason stated therein are sufficient for condonation of delay, to which ld. DR did not object. Accordingly, we condone the delay of 108 days in filing the appeal and appeal of the assessee is heard finally.

2

3.

At the outset, ld. AR submitted that the CIT(A) has passed the ex-

parte order without providing any opportunity of hearing. It was also submitted by ld. AR that against the original assessment order, the assessee preferred appeal before the CIT(A) and further aggrieved

from the order or CIT(A) assessee filed appeal before the Tribunal,

wherein the Tribunal after considering the submissions of the assessee

has set aside the assessment with direction to the AO to assess the income of the assessee in accordance with the provisions of the Act de

novo after affording a reasonable opportunity of being heard.

Thereafter the AO vide order dated 31.12.2007 has passed the assessment order u/s.144 of the Act. Against which the assessee filed

appeal before the CIT(A) and the CIT(A) dismissed the appeal of the assessee vide impugned order dated 10.08.2015. It was also strenuously contended by ld. AR that the impugned order passed by the CIT(A) is not sustainable as he himself has passed the assessment

order u/s.144 of the Act, being the Additional Commissioner.

Therefore, ld. AR requested that the matter may kindly be restored to the CIT(A) other than the CIT(A) who has passed the impugned order.

4.

On the other hand, ld. DR fairly conceded to the above arguments

of ld. AR of the assessee.

5.

On careful consideration of the rival submissions of both the parties and on perusal of the relevant material placed in the record of 3 the Tribunal along with the orders of both the authorities below, at the outset, we find that the ld. CIT(A) has passed the impugned order ex- parte. Even on perusal of the assessment order, we find that the person, who has passed the assessment order u/s.144 of the Act being the Additional Commissioner, has also passed the impugned order being the Commissioner of Income Tax (Appeal). Therefore, as per the objection raised by the ld. AR assessee during the course of hearing and considering the facts and circumstances of the case, we restore the entire matter to the file of CIT(A), other than the Commissioner of Income Tax (Appeal), who has passed the impugned order, and direct to pass a speaking and reasoned order considering the submissions of the assessee, after providing sufficient opportunity of hearing to the assessee. The assessee is also directed to cooperate with the CIT(A) positively for early disposal of the case.

6.

In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 28/01/2020. (C.M.GARG) (L.P.SAHU) न्यानयक सदस्य / JUDICIAL MEMBER ऱेखा सदस्य / ACCOUNTANT MEMBER कटक Cuttack; ददनांक Dated 28/01/2020 Prakash Kumar Mishra, Sr.P.S.

4 आदेश की प्रनिलऱपप अग्रेपषि/Copy of the Order forwarded to : अऩीलाथी / The Appellant-

1.

M/s B.Engineers & Builders Ltd., 72/A, Mancheswar Ind. Estate Bhubaneswar प्रत्यथी / The Respondent-

2.

ACIT, Circle-2(1), Bhubaneswar आयकि आयुक्त(अऩील) / The CIT(A), 3. आयकि आयुक्त / CIT 4. ववभागीय प्रनतननधध, आयकि अऩीलीय अधधकिण, कटक / DR, ITAT,

5.

Cuttack गार्ा पाईल / Guard file. 6. सत्यावऩत प्रनत //// आदेशािुसार/ BY ORDER,

(Senior Private Secretary) ITAT Cuttack Bench, Cuttack

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