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Income Tax Appellate Tribunal, DELHI BENCH “SMC”, NEW DELHI
Before: SH.BHAVNESH SAINI
PER BHAVNESH SAINI, JUDICIAL MEMBER
This appeal by the Revenue has been directed against the order of Ld.CIT(A)-I, Noida dated 30.06.2017 for AY 2009-10.
I have heard Ld. Sr. DR and perused the findings of the authorities below. None appeared on behalf of the assessee despite notifying the date of hearing through registered post. In this case, the AO passed the ex-parte order u/s 144 r.w.s 147 of the Income Tax Act, 1961 (in short “Act”) dated 28.11.2016.
3. Ld.CIT(A) in his order noted that the impugned assessment order has been framed without assuming the jurisdiction u/s 143(2) of the Act and, is therefore, bad in law. It is also noted that on the date of framing of the unlawful assessment order, the AO was competent to frame the assessment order in the case of the assessee after adhering to the correct prescribed procedure, the case of the Revenue is protected u/s 150 of the Act. The assessment order was deleted and the AO was directed to re-frame the assessment order after following the correct prescribed procedure and in terms of the jurisdiction conferred u/s 150 of the Act, the appeal was accordingly disposed off.
Ld. Sr. DR submitted that the issue is covered by order of ITAT, SMC Bench, Delhi in the case of ITO vs Ashoo Singhal vide order dated 02.05.2018 in which on identical facts, the matter has been restored to the file of the Ld.CIT(A) to pass a speaking order. The order is reproduced as under:-
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : SMC : NEW DELHI
BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER Assessment Year : 2009-10 INCOME TAX OFFICER, Vs. ASHOO SINGHAL, WARD 1(1), E-1202, BESTECH PARK VIEW A-2/D, AAYAKAR BHAWAN, SPA, SECTOR-24, SECTOR-47, GURGAON NOIDA- 201 301 (UP) (PAN: AFUPS4378A)
(Appellant) (Respondent)
Revenue by : None Assessee by : Ms. Shaifali & Sh. Utkarsh, CA
ORDER This appeal has been filed by the Revenue against the Order dated 30.6.2017 of the Ld. Commissioner of Income Tax (Appeals)-1, Noida relevant to assessment year 2009-10. 2. The grounds raised in the appeal read as under:-
1. That the CIT(A) has erred in law and on facts by annulling the assessment order on ground that no notice under section 143(2) was issued before the completion of assessment under section 144 of the I.T. Act, 1961.
2. That the CIT(A) has erred in law and on facts by ignoring the facts that no return was filed by the assessee in response to notice under section 148 and notice u/s 143(2) is mandatory, where a return has been furnished under section 139, or in response to a notice under sub-section (1) of section 142 or in response to notice u/s 148 of the I.T. Act, 1961.
3. That the CIT(A) has erred in law and on facts by ignoring the fact that as per provision of section 143(2)(ii) there is a time limit for issuance of notice under section 143(2) i.e. shall be served on the assessee before the expiry of six months from the end of the financial year in which the return is furnished, but in the case under consideration no return was filed by the assessee.
4. That the CIT(A) has erred in law and on facts by annulling the assessment order as on similar issues Hon'ble ITAT, Delhi Bench 'SMC', New Delhi vide order dated 30/10/2017 in in the case of Sh. Sachin (PAN-APPPK6176F) for A.Y.2008-09 has allowed the appeal of the Revenue.
5. The appellant craves to leave, add, alter and amend any of the grounds of appeal
on or before hearing.
6. That the order of the learned CIT(A) deserves to be set- aside and the order of the AO be restored.
3. During the hearing, Ld. Sr. DR requested for adjournment on the ground that she wants to recuse herself from arguing the matter. After considering the request of the Ld. Sr. DR, I am of the view that Ld. Sr. DR has not established any plausible reasons for recusing her from arguing the matter, therefore, the request of the Ld. Sr. DR is rejected and keeping in view of the impugned order, I am proceeding to hear the appeal and deciding the appeal exparte qua Revenue, after hearing the Ld. A.R. of the assessee.
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.
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 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.”
5. 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.
In the result, the Revenue’s appeal is allowed for statistical purposes. Order pronounced on 02-05-2018. SD/- [H.S. SIDHU] JUDICIAL MEMBER Date 02/05/2018
After considering the submissions of the Ld. Sr. DR, I am of the view that the matter required reconsideration. The AO passed ex-parte assessment order.
Ld.CIT(A) passed a non speaking order. He has not mentioned any fact in the appellate order as to why the notice u/s 143(2) have not been served upon the assessee when no return u/s 148 have been filed. The issue is identical as have been considered and decided in the case of ITO vs Ashoo Singhal (supra).
Following the same, I set aside the impugned order and restored the appeal to the file of Ld.CIT(A) with the direction to re-decide the appeal of the assessee by passing a speaking order by giving opportunity of being heard to the assessee.
In the result, the appeal of the Revenue is allowed for statistical purposes.
Order pronounced in the open court.