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Income Tax Appellate Tribunal, DELHI BENCH: ‘SMC’ NEW DELHI
Before: SHRI H. S. SIDHU
ORDER This appeal is filed by the assessee against the Order dated 28.09.2017 passed by the Ld. CIT(A), Ghaziabad relating to Assessment Year 2010-11 on the following grounds.
That the impugned order passed u/s. 147/144 of the Act is bad in law and needs to be set aside.
That the impugned order u/s. 250 is not sustainable under the law and needs to be set aside.
3. That the ‘Reason to belief’ as recorded by the Assessing Authority prior to the issuance of notice u/s. 148 is insufficient and without any proper investigation.
That the satisfaction recorded as per mandatory provisions of section 151 were obtained from both the JCIT, Range-2, Ghaziabad and Principal Commissioner, Ghaziabad, which is procedure wise and legally against the provisions of section 151.
5. That the AO did not serve any notice to the appellant’s address prior to the proceedings u/s. 147/144.
That the ITO has erred not to issue the notice u/s. 143(2), prior to proceed the assessment proceedings u/s. 147/144.
That the Ld. CIT(A) has erred not to refer the matter to AO for remand report on all the evidences filed by the appellant, at the time of adjudication of application under Rule 46A.
If necessary additional / revised / modified grounds of appeal shall be filed at the time of hearing of instant appeal.
Prayer
It is, therefore, most respectfully prayed that this Hon’ble Tribunal may be pleased to pass order in favour of the appellant and allow all the ground nos. 1 to 7 of this instant appeal.
Such other further order this Hon’ble Tribunal may deem fit and proper in the facts and circumstances of the case in favour of the appellant and against the Respondent.
2. At the time of hearing Ld. Counsel for the assessee stated that AO did not serve any notice to the assessee’s address prior to the proceedings u/s. 147/144 of the Act and passed the exparte order without giving sufficient opportunity to the assessee for substantiating his case. He further submitted that before the Ld. CIT(A), assessee has filed an application under rule 46A of the I.T. Rules, but he did not even send those documents and details to the AO for his remand report and did not admit the same, which were very much essential to determine the issue in dispute and also has not given adequate opportunity of hearing as well as not providing opportunity of producing the relevant evidences for substantiating the claim of the assessee. He has also filed a Paper Book containing pages A-D & 1-41 in which he has attached the copy of written submissions; certified copy of the notice u/s. 148 dated 30.3.2017; certified copy of the notice u/s. 142(1) dated 8.9.2017; certified copy of the notice u/s. 144 dated 25.9.2017; certified copy of Medical Certificate as filed before CIT(A), Ghaziabad; copy of statement of affairs as on 31.3.2009 and 31.3.2010, filed before CIT(A); copy of statement of computation for the AY 2010-11 and From 26AS for AY 2010-11, filed before CIT; Kisan Bahi (book); photocopy of savings A/c of Canara Bank, Modi Nagar Br. ; registered agreement to sale of agricultural land; receipt of sale of gram and rice; certified copy of affidavit and ID proof of Mr. Raj Kumar as original filed before CIT(A); certified copy of affidavit and ID proof of Mr. Devender Singh as original filed before CIT(A); certified copy of affidavit, employment and ID proof of Mr. Satender Kumar as original filed before CIT(A) and certified copy of affidavit of the appellant in original as original filed before CIT(A). Hence, he requested that the issues in dispute may be set aside to the file of the AO for fresh consideration, after giving adequate opportunity of being heard to the assessee.
Ld. Sr. DR has not raised any objection on the request of the Ld. Counsel for the assessee.
4. I have heard both the parties and perused the orders of the revenue authorities. I am of the view that AO has passed the exparte order u/s. 144/147 of the Act without giving adequate opportunity of being heard to the assessee and in appeal assessee filed an filed an application under Rule 46A of the I.T. Rules, 1962 for admitting of additional evidences, but Ld. CIT(A) did not even send those documents and details to the AO for his remand report and not admitted the same by discussing the same vide para no. 4 & 5 of his impugned order. However, in my considered opinion, the additional evidences filed under Rule 46A as discussed in para no. 4 & 5 of the impugned order are very much essential to determine the issue in dispute and needs to be thoroughly examined by the AO. Hence, in the interest of justice, I admit the same and set aside the issues in dispute to the file of the AO with the directions to thoroughly examine all the evidences/additional evidences to be filed by the Assessee and then decide the issues in dispute afresh, after giving adequate opportunity of being heard to the assessee. Assessee is also directed through his counsel to fully cooperate with the Assessing Officer in the proceedings and did not take any unnecessary adjournment.
In the result, the appeal filed by the assessee stands allowed for statistical purposes.
Order pronounced on 06/11/2019.