NIRBHAY KUMAR,NEW DELHI vs. ACIT, CIRCLE-1, NOIDA

(A) This appeal by Assessee is filed against the order of the Learned Commissioner of Income Tax (Appeals)-1, Noida, [“Ld. CIT(A)” for short], dated 27.01.2016, for Assessment Year (“A.Y.”, for short) 2011-12, on the following grounds:

“1. That the learned CIT (A) has erred in the facts and circumstances of the case that appellant has failed to produce the complete certified and attested copy of assessment order passed u/s 143(3) of the Income Tax Act, 1961 while filing appeal ignoring application dated 06.04.2017 containing request for assessment order u/s 143(3) of the Income Tax Act, 1961.

ITA No.- 4089/Del/2017. Shri Nirbhay Kumar.

4. That the appellant craves leave to add, alter and modify any of the grounds during the course of appellate proceedings.

(B) Assessment Order dated 31.03.2014 was passed under Section 143(3) of Income Tax Act, 1961 (“I.T. Act”, for short), in which total income was assessed at Rs. 1,05,44,362/- as against return income of Rs. 12,71,952/-. Aggrieved, the assessee filed appeal before Ld. Commissioner of Income Tax (Appeals)-1, Noida, the Ld. CIT(A) dismissed assessee’s appeal vide order dated 27.01.2016. The relevant portion of order of the Ld. CIT(A) is reproduced as under:

“4. The impugned assessment order was passed by the Id. A.O. U/s. 143(3) of I.T. Act, 1961 after considering the evidence led by the appellant. While the appellant has every right to contest the findings of the id. A.O. in appeal which lies as a matter of right, the onus is on the appellant to lead evidence and prove that the findings arrived at by Id. A.O. was incorrect. In the instant case the appellant has not even submitted the statement of facts. It has also not taken an legal ground or-any factual ground in support of its claims. It has simply noted as grounds of appeal “grounds of appeal - to be submitted at the time of hearing". White repeated hearing were granted the appellant neither' appeared nor submitted any ground of appeal. The appeal memo signed by the appellant and submitted through the Id., counsel in whose favour a power of attorney was enclosed but without any acceptance by the Id. counsel does not contain any prayer either. Without there being any ground of appeal and there being any ITA No.- 4089/Del/2017. Shri Nirbhay Kumar. prayer the appeal of the appellant will have no force. A copy of form No.35 as filed by the appellant is annexed with the present order.

5. In view of these material facts neither the appellant has any grievance against the impugned order nor has it any ground to be aggrieved by the impend order. The appellant also does not want any relief against the impugned order.

(B.1) The assessee has filed this present appeal in Income Tax Appellate Tribunal (“ITAT”, for short) against the aforesaid impugned appellate order dated 27.01.2016 of Ld. CIT(A).

In the grounds of appeal, in the present appeal before us, it has been stated that the assessee had not received the Assessment Order under Section 143(3) of I.T. Act.

Moreover, it has been stated that the assessee’s address had changed from F-312, Jalwayu Tower, Sector-37, Noida to F-613, Jalwayu Tower, Sector-47, Noida; due to which correspondence could not be received by the assessee.

(C) On perusal of grounds of appeal in the present appeal before us; and the impugned appellate order dated 27.01.2016 of the Ld. CIT(A), we find that the appeal filed by the assessee before Ld. CIT(A) was defective in as much as neither the Certified Copy of the Assessment Order was filed; nor grounds of appeal were filed. However, there was reasonable cause for this as the Assessee had not received the Assessment Order.

Moreover, due to change of assessee’s address, the notices of hearing issued by Ld. CIT(A) did not reach. In view of the foregoing; we direct the assessee to intimate the correct present address to Ld. CIT(A) and to the Assessing Officer. In the interest of justice, and so that the assessee gets reasonable opportunity before Ld. CIT(A); we set aside the ITA No.- 4089/Del/2017. Shri Nirbhay Kumar. impugned appellate order dated 27.01.2016 of Ld. CIT(A) with the direction to pass fresh order after providing opportunity of being heard to the assessee.

(D) In the result, appeal filed by assessee is partly allowed.

Order pronounced in the Open Court on 4/12/2019.