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Facts
The assessee filed two appeals (quantum and penalty) against the NFAC order for AY 2009-10, where the CIT(A) had confirmed the assessment order and penalty imposed by the AO. The assessee contended that both the assessment and CIT(A) orders were passed ex-parte without granting an opportunity of being heard, requesting a remand for fresh consideration.
Held
The Tribunal found that both the AO and CIT(A) had passed orders ex-parte without hearing the assessee. To ensure justice, the Tribunal set aside the assessment and penalty orders, remanding the matter to the AO for fresh assessment after providing an opportunity of being heard to the assessee. The penalty order was consequently deleted, with the AO retaining the liberty to initiate fresh penalty proceedings if an addition is made during the fresh assessment.
Key Issues
1. Whether ex-parte assessment and penalty orders, passed without granting an opportunity of being heard to the assessee, are sustainable in law. 2. Whether the matter should be remanded to the Assessing Officer for a fresh assessment after hearing the assessee.
Sections Cited
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, DELHI BENCH’ SMC’: NEW DELHI
1 & 3048/Del/2023 Vikas Sharma Vs. ITO IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH’ SMC’: NEW DELHI BEFORE, SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER AND SHRI YOGESH KUMAR U.S., JUDICIAL MEMBER (ASSESSMENT YEAR 2009-10) Vikas Sharma Income Tax Officer 16-A/1102, Vasundhara, Ward-1(5), Ghaziabnad, Vs. Ghaziabad Uttar Pradesh Uttar Pradesh PAN-AVJPS8784R (Appellant) (Respondent) ITA No.3048/Del/2023 (ASSESSMENT YEAR 2009-10) Vikas Sharma Income Tax Officer 16-A/1102, Vasundhara, Ward-1(5), Ghaziabnad, Vs. Ghaziabad Uttar Pradesh Uttar Pradesh PAN-AVJPS8784R (Appellant) (Respondent) Appellant by Shri Tarun Chanana, Adv Respondent by Shri Om Prakash, Sr. DR Date of Hearing 09/05/2024 Date of Pronouncement 10/05/2024 ORDER PER YOGESH KUMAR U.S.JM:
Both the appeals are filed by the Assessee against the order of National Faceless Appeal Centre, Delhi [“NFAC” for short], dated 28/08/2023 for the Assessment Year 2009-10 wherein the Ld. penalty imposed by the A.O.
The Ld. Counsel for the assessee submitted that both the assessment order and the order of the CIT(A) were passed ex-parte without giving opportunity of being heard to the assessee, therefore, sought for remanding the matter to the file of the A.O. for fresh consideration.
The Ld. Departmental Representative relying on the order of the Lower Authorities sought for dismissal of the Appeal.
We have heard both the parties and perused the material available on record. Considering the fact that both the A.O. as well as CIT(A) have passed orders ex-parte without hearing the assessee, we are of the opinion that if an opportunity of being heard is given to the assessee, the substantial justice would be rendered.
Therefore, we set aside the impugned order of the A.O. as well as CIT(A) and remand the matter to the file of the A.O. for framing the assessment afresh after hearing the assessee in accordance with assessment proceeding. Ordered accordingly.
ITA No.3048/Del/2023 (Penalty Appeal)
In the quantum Appeal in , we have set aside the assessment order and the order of the Ld. CIT(A) and remanded the matter to the file of A.O. for framing the assessment afresh, therefore, the penalty order passed thereon does not survive accordingly, we delete the impugned penalty. Nevertheless, the A.O. is at liberty to initiate penalty proceedings in accordance with law if he makes the addition while framing the fresh assessment.
Ordered accordingly. 3048/Del/2023 are partly allowed for statistical purpose. Order pronounced in open Court on 10th MAY, 2024