JOHN ANTONY,COIMBATORE vs. ITO, NON CORPORATE WARD-2(2), COIMBATORE

Both the appeals filed by the assessee are directed against different orders of the ld. Commissioner of Income Tax (Appeals) 2, Coimbatore, both dated 28.09.2017 relevant to the assessment years 2009-10 and 2011-12.

Facts are, in brief, that the assessee is an individual, filed his return of income for the assessment year 2009-10 on 24.02.2010 admitting a total income of ₹.7,07,980/-. The case was selected for scrutiny through CASS and the assessment was completed under section 143(3) of the Income Tax Act, 1961 [“Act” in short] dated 04.11.2011. Subsequently, the case was reopened by issuing notice under section 148 of the Act to the assessee and accordingly, the assessment under section 143(3) r.w.s. 147 of the Act was completed by order dated 09.12.2016. Similarly, for the assessment year 2011-12 also, the assessment under section 143(3) r.w.s. 147 of the Act was completed by order dated 09.12.2016. The assessee carried the matter in appeal before the ld. CIT(A) for both the assessment years and the ld. CIT(A) has confirmed the order of the Assessing Officer.

On being aggrieved, the assessee is in appeal before the Tribunal for both the assessment years. Since the assessee has opted the VSVS scheme and filed Forms 1 & 2, both the appeals of the assessee are dismissed by order dated 05.01.2021.

Subsequently, the applications filed by the assessee under VSVS Scheme have been rejected by the Designated Authority on 20.01.2021, vide order in M.A. Nos. 35 & 36/Chny/2021 dated 27.05.2022, the appeal orders of the Tribunal dated 05.01.2021 have been recalled and appeals are posted for hearing.

When the appeals were taken up for hearing, the ld. Counsel for the assessee has pointed out that the Assessing Officer has reopened the assessment by issuing notice under section 148 of the Act, which is bad in law and submitted that the same was not raised before the ld. CIT(A) and prayed that the legal ground may be adjudicated.

On the other hand, the ld. DR has not raised any serious objection.

We have heard both the sides, perused the materials available on record and gone through the orders of authorities below. In this case, the assessment was reopened under section 147 of the Act and the assessment was completed under section 143(3) r.w.s. 147 of the Act dated 09.12.2016 for both the assessment years. The assessee has not raised the issue of reopening of assessment before the ld. CIT(A) and before the Tribunal, the assessee has raised the legal ground. Therefore, we are of the considered opinion that the ld. CIT(A) should be given an opportunity to adjudicate the legal ground and pass speaking order along with other grounds also. The ld. DR has also not raised any objection. Accordingly, we remit the matter back to the file of the ld. CIT(A) to adjudicate the legal ground and also other issues in accordance with law for both the assessment years.

In the result, the both the appeals filed by the assessee are allowed for statistical purposes. Order pronounced on the 30th November, 2022 in Chennai.