SHRI.PRAFUL JAIN ,HARYANA vs. ASSISTANT COMMISSIONER OF INCOME TAX WARD-5(3)(3), BANGALORE

O R D E R

Per Shri A.K. Garodia, Accountant Member

by the assessee are as under.

1. On the facts and in the circumstance of the case and in law the CIT(A) was incorrect aid unjustified: a. In dismissing the appeal of the assessee. b. In holding that the AO had rightly and validly acquired jurisdiction over the assessee and therefore had rightly framed the assessment. c. In not holding that AO Bangalore had no valid jurisdiction over the assessee. d. In not declaring the assessment passed u/s 143(3) as invalid and void ab - initio in the absence of any valid jurisdiction upon the assessee. e. In holding that request of the assessee regarding no jurisdiction over him of the AO, cannot be accepted. f. In holding that the assessee was insisting on technical issue rather than the merits of the case, meaning thereby, the CIT(A) even agreeing with the jurisdiction issue raised by the assessee but had not accepted the jurisdictional issue mainly on the basis of technical ground which is not correct. g. In not agreeing with the request of the assessee that the assessee had not filed the revised return even when the assessee had informed both the AO and the CIT(A) during assessment proceedings. h. In holding that the AO was correct and justified in not agreeing with the request of the assessee to transfer his case to Gurgaon on the basis of lack of time. i. In not holding that the assessment was bad in law and invalid in the absence of service of notice u/s 143(2) even though agreeing for absence of 143(2) notice as per the Para 4.3 of the appeal order.

2. On the facts and in the circumstance of the case and in law the CIT(A) was incorrect and unjustified in disposing and dismissing the appeal without considering and deciding the issue of jurisdiction of the AO, Bangalore upon the assessee.

5. On the facts and in the circumstance of the case and in law the CIT(A) was incorrect and unjustified in deciding the appeal even on merits alone without considering the legal issue claiming that the AO, Bangalore had no jurisdiction over the assessee and hence the assessment was illegal and invalid.

3. At the very outset, it was submitted by ld. AR of assessee that the order passed by CIT(A) is ex-parte qua the assessee. He further submitted that admittedly, various notices were issued by CIT(A) as noted by him in Para 4 of his order but since the assessee is residing at Gurgaon for last several years as noted by CIT(A) also in Para 4.1 of his order and therefore, the assessee could not appear before the CIT(A). He submitted that in the interest of justice, the matter may be restored back to the file of CIT(A) for fresh decision after

providing adequate opportunity of being heard to assessee and he further submitted that if this is done, he undertakes that this time, the assessee will comply and appear before CIT(A) to make out his case. The ld. DR of revenue supported the order of CIT(A). He also submitted that since several opportunities were provided by CIT(A) to assessee, the assessee does not deserve any further opportunity and therefore, the order of CIT(A) should be confirmed.

4. I have considered the rival submissions. I find that this is true that various notices were issued by CIT(A) to assessee during September 2017 to December 2017 and neither the assessee nor his AR appeared before him and no application for adjournment was filed although assessee has filed written submissions dated 17.11.2017 in which it was submitted that since the assessee is residing at Gurgaon, the AO at Bangalore has no jurisdiction over the assessee and therefore, all the notices and the assessment order dated 28.03.2016 made by the AO is illegal, invalid and void ab-initio. These facts are noted by CIT(A) in para 4 of his order. Considering these facts, I feel that in the interest of justice, one more opportunity should be provided to assessee to make proper representation before CIT(A) and hence, I set aside the order of CIT(A) and restore the matter back to his file for fresh decision after providing reasonable opportunity of being heard to both sides. I want to make it clear that as per the undertaking given by the ld. AR of assessee, the assessee should make proper compliance before CIT(A) to make out his case. In view of this decision, no adjudication is called for regarding the merit of the case at the present stage.