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Income Tax Appellate Tribunal, DELHI BENCHES “SMC” : DELHI
Before: SHRI BHAVNESH SAINI
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.
2. The A.O. passed the assessment order dated 28.12.2016 on a total income of Rs.47,30,000. The assessee did
2 ITA.No.34/Del./2018 Shri Jagdish Singh Chauhan, Gautam Budh Nagar. not file return of income. The Ld. CIT(A) noted that impugned assessment order has been framed by A.O. without assuming jurisdiction under section 143(2) of the I.T. Act. It is also noted that as on the date the impugned assessment order was framed, the A.O. had the jurisdiction to frame a lawfully correct assessment, the Revenue is protected under section 150 of the I.T. Act, 1961. The impugned assessment order was, therefore, deleted being bad in law, subject to the protection of Section 150 of the I.T. Act and A.O. was directed to re-frame the assessment after complying with the requirement of procedure as per Law.
3. The Ld. D.R. contended that in this case no return of income have been filed. Therefore, there is no question of service of notice under section 143(2) of the I.T. Act. He has submitted that on identical issue, the ITAT, SMC-Bench in the case of ITO, Ward-1(1), Noida vs. Ashoo Singhal, Gurgaon in ITA.No.7821/ Del./2017 for A.Y. 2009-2010 vide order dated 02.05.2018 restored the matter to the file of Ld. CIT(A), to pass a speaking
3 ITA.No.34/Del./2018 Shri Jagdish Singh Chauhan, Gautam Budh Nagar. order. The relevant findings of the Tribunal 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 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.
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
4 ITA.No.34/Del./2018 Shri Jagdish Singh Chauhan, Gautam Budh Nagar. 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 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
5 ITA.No.34/Del./2018 Shri Jagdish Singh Chauhan, Gautam Budh Nagar. records and give adequate opportunity of being heard to the assessee.
6. In the result, the Revenue’s appeal is allowed for statistical purposes.”
On the other hand, Learned Counsel for the Assessee submitted that the case of the wife of the assessee is also taken by the Department on which two different views should not be taken and assessee may be provided with an opportunity of being heard and case may be transferred to the respective jurisdictional Ward of the Income Tax Department in Noida.
5. After considering the rival submissions, I am of the view that since in identical circumstances, the Tribunal in the case of ITO, Ward-1(1), Noida vs. Shri Ashoo Singhal, Gurgaon (supra), restored the matter to the file of Ld. CIT(A), therefore, following the same order and considering the request of the assessee, I set aside the order of the Ld. CIT(A) and restore the appeal of assessee to his file with a direction to pass order on merit, by giving reasons for decision of the same. Ld. CIT(A) may
6 ITA.No.34/Del./2018 Shri Jagdish Singh Chauhan, Gautam Budh Nagar. also take into consideration if any order have been passed in the case of assessee’s wife Smt. Geeta Devi.
In the result, Departmental appeal is allowed for statistical purposes.
Order pronounced in the open Court.