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Income Tax Appellate Tribunal, DELHI BENCHES “SMC” : DELHI
Before: SHRI BHAVNESH SAINI
Date of Hearing : 09.07.2018 Date of Pronouncement : 09.07.2018 ORDER This appeal by Revenue has been directed against the Order of the Ld. CIT(A)-1, Noida, dated 30.06.2017, for the A.Y. 2009-2010.
I have heard the Ld. D.R. and perused the orders of the authorities below. However, none appeared on behalf of the assessee.
2 ITA.No.105/Del./2018 Shri Praveen Kumar, Gautam Budh Nagar. 3. The Ld. CIT(A) noted in the impugned order that A.O. passed the assessment order without assuming jurisdiction under section 143(2) of the I.T. Act. Therefore, no valid assessment can be framed. Impugned order was directed to be deleted being bad in law. However, A.O. was directed that benefit of protection under section 150 could be taken. A.O. was accordingly directed to proceed.
The Ld. D.R. submitted that in this case since no return of income have been filed by the assessee, therefore, there is no reason to comply with the provisions of Section 143(2) of the I.T. Act which is ignored by the Ld. CIT(A) and that on identical issue the Tribunal in the case of ITO, Ward-1(1), Noida vs. Ashoo Singhal, Gurgaon in ITA.No.7821/Del./2017 dated 02.05.2018, restored the matter to the file of Ld. CIT(A).
The order is reproduced as under :
“4. I have gone through the orders of the revenue authorities and the ground raised by the Department and especially the impugned order dated 30.6.2017 passed by the Ld. CIT(A)-I, Noida. For the sake convenience, I am
3 ITA.No.105/Del./2018 Shri Praveen Kumar, Gautam Budh Nagar. reproducing herewith the contents of the impugned order of the Ld. CIT(A) as under:-
“1. The present appeal is filed by the appellant against an assessment order dated 30.11.2016 passed by the AO u/s. 144 /147 of the I.T. Act, 1961 for AY 2009-10 on a total income of Rs. 38.53.500/- against no return of income filed by the assessee. aggrieved by the same the appellant has preferred appeal.
2. Ms. Ritika Chhabara, CA appeared and canvassed the case of the appellant.
The impugned assessment order has been framed without assuming jurisdiction u/s. 143(2) of I.T. Act, 1961 and is therefore bad in law. As on the date of framing of the unlawful assessment order the Ld. AO was otherwise competent to frame the assessment order in the case of the appellant after adhering to the correct prescribed procedure, the case of the Revenue is protected under section 150 of I.T. Act, 1961. In view of the impugned assessment order is therefore deleted and the Ld. AO is directed to reframe the 4 ITA.No.105/Del./2018 Shri Praveen Kumar, Gautam Budh Nagar. assessment order after following the correct prescribed procedure and in terms of the jurisdiction conferred under section 150 of I.T. Act, 1961. The appeal of the appellant is disposed in terms of the above.”
I have also gone through the assessment order dated
30.11.2016 passed u/s. 147/144 of the I.T. Act, 1961 and I am of the view that AO has passed the order u/s. 144 of the Act without giving sufficient opportunity to the assessee and the Ld. CIT(A) has also passed a non-speaking order which I have reproduced as above, which is not sustainable in the eyes of law. Therefore, in the interest of justice, I am setting aside the impugned order dated 30.6.2017 passed by the Ld. CIT(A) with the direction to the Ld. CIT(A) to pass a speaking order, after going through the assessment records and give adequate opportunity of being heard to the assessee.
6. In the result, the Revenue’s appeal is allowed for statistical purposes.”
5 ITA.No.105/Del./2018 Shri Praveen Kumar, Gautam Budh Nagar. 5. Considering the submissions of the Ld. D.R. in the light of Order of the Tribunal in identical case of Shri Ashoo Singhal, Gurgaon (supra), I am of the view that no return of income have been filed under section 148 of the I.T. Act, therefore, the matter requires re-consideration at the level of the Ld. CIT(A). I, accordingly, set aside the orders of the authorities below and restore the appeal of assessee to his file with a direction to re-decide the appeal of assessee on merit, by giving reasonable, sufficient opportunity of being heard to the assessee and the A.O.
In the result, appeal of Revenue is allowed for statistical purposes.
Order pronounced in the open Court.