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Income Tax Appellate Tribunal, CHANDIGARH
Before: SMT. DIVA SINGH, JM
Hearing conducted via Webex आदेश/ORDER
The present appeal has been filed by the assessee wherein the correctness of the order dated 25.08.2019 of CIT(A) Ludhiana pertaining to 2009-10 assessment year is assailed on various grounds. However, at the time of hearing ld. AR confined his arguments to ground No. 2 raised in the prese nt appeal which reads as under :
ITA 1579 /CHD/2019 A.Y. 2009-10 Page 2 of 5
“2. That Ld. CIT (A) has erred in law and facts of the case in upholding the order of Ld. AO despite the fact that assessment was made without issuing statutory notice u/s 143(2). Finding of the Ld. CIT (A) is against facts on record.”
Attention was invited to the spe cific finding of the CIT(A) arrived at in para 5.1.3(ii) so as to argue that the said finding may not be upheld as the said authority has failed to decide the issue and given a generalistic finding.
The specific para is reproduced below for the sake of completeness :
5.1.3 Keeping in view the aforesaid facts, the AO was fully justified in initiating the proceedings u/s 147 r.w.s. 148 of the IT. Act. These grounds of appeal are accordingly dismissed. (II). None issuance of Notice u/s 143(2) of the Act:- During the appellant proceeding the appellant has submitted that the notices u/s 143(2) was never issued and served upon it. In order to verify this contention of the appellant I have called for the assessment record and from the perusal of the same is came to the-notice of the undersigned that the notices u/s 143(2) of the Act dated 09.05.2016 along with the questionnaire is available at page no. 14 of the appellant record. The appellant has not challenged the validity of assessment proceedings , during entire assessment proceedings, and kept attending the proceedings . As such the contention of the appellant does not carry any force as the appellant has not challenged the none issuance and none service of the notices u/s 143(2) and 142(1) of the Income Tax Act at the time of assessment proceedings. Therefore, this ground of appeal stands dismissed. (emphasis supplied)
The legal requirement, it was submitted, is that the notice should have been issued. Me rely because it is available on file cannot be said to be the legal requirement.
3.1 Attention was also invited to page 6 of the impugned order wherein the reply of the AO in the remand
ITA 1579 /CHD/2019 A.Y. 2009-10 Page 3 of 5 proceedings has been reproduced in para 4.1 of the impugned order. Referring to the same it was his submission that the letter No. 1307 dated 05.02.2019 of the AO made available in the remand proceedings, no categoric finding has been given saying that notice u/s 143(2) of the Act was ever issued. It was his submission that he has a copy of the said letter in his possession wherein it is clearly evident that the issue has been avoided as no such reference to notice having been issued has been made. It was submitted that in the remand proceedings, the AO merely highlights that the issue was not raised during the assessment proceedings and hence, urges that the assessee should not be allowed to raise it at this stage.
3.2 Mr. Satbir Gagr, ld. AR vehemently argued that at the assessme nt stage, there was no occasion to raise the ground as he was not aware as to what was being enquired into by the AO and hence the first opportunity when the assessee could raise such ground was at the First Appellate stage only, which has been done.
3.3 The ld. CIT(A), it was submitted, has failed to address the specific legal shortcoming which goes to the root of the matter. In the finding arrived at, it was submitted that ITA 1579 /CHD/2019 A.Y. 2009-10 Page 4 of 5 the CIT(A) has infact not addressed the specific ground.
The specific finding arrived at in para 5.3 highlighted again by ld. AR was referred to and it was his submission that it just skirts the issue and does not deal with the grievance of the assessee.
The ld. Sr.DR relied upon the impugned order.
The parties were directed to address their arguments whether a re mand back to the ld. CIT(A) would satisfy the grievance as admittedly the fact whether notice u/s 143(2) was issued or not needs to be verified. Its mere existence on the file cannot be said to meet the legal requirements which position stands well settled by Courts. Both the parties agreed to remand the issue back to the file of the ld. CIT(A).
In the light of the prayer of the parties before the Bench and the arguments advanced on going through the record, I am of the view that in the interests of justice, a categoric finding has to be available as to whether notice u/s 143(2) was issued to the assessee or not. Accordingly, the impugned order is set aside in toto and the issues are restored back to the file of the CIT(A) with a direction to pass a speaking order in accordance with law addressing
ITA 1579 /CHD/2019 A.Y. 2009-10 Page 5 of 5 the specific grievance. Said order was pronounced at the time of virtual hearing via Webex.
In the result the appeal of the assessee is allowed for statistical purposes.
Order pronounced on 6 t h November,2020.