ABHISHEK KUMAR,NEW DELHI vs. ITO, GURGAON

The present appeal has been filed by the assessee assailing the correctness of the order dated 17.02.2016 of CIT(A)-1, Gurgaon pertaining to 2009-10 assessment year on various grounds including Ground No.1 which reads as under:- 1. “That on the facts and circumstances of the case and law on the point, the order passed by Ld. Assessing Officer u/s 144 of the Income Tax Act, 1961 dated 05.12.2011 is null and void as it is not preceded by proper service of statutory notice u/s 143(2) of the Income Tax Act, 1961 and Hon’ble CIT(A) erred in not adjudicating this ground of appeal on merits.”

2. The relevant facts of the case are that the assessment was concluded at an income of Rs.12,77,947/- as opposed to the returned income of Rs.8,93,320/- by the order u/s 143/144 of the Income Tax Act, 1961. The jurisdictional issue raised by the assessee before the CIT(A) was addressed vide Ground No.2 which reads as under:- 2. “That on the facts and circumstances of the case and law on the point, Ld. Assessing Officer has erred in accepting factually wrong return filed by the appellant and did not take the correct figures while processing the computation of income.” 2.1. A perusal of the impugned order page 6 para 4 shows that it was dismissed as being general and consequential in nature requiring no adjudication. The relevant extract is reproduced hereunder:- 4. “Ground No.1 & 2:-These grounds are general and consequential in nature hence does not require any adjudication.”

2.2. In the light of the above facts and after considering the submissions of the parties, I am of the view that the impugned order cannot be upheld. The jurisdictional issue cannot be said to be a general ground requiring no adjudication. Whenever jurisdiction of an authority to pass the order is I.T.A .No.-2651/Del/2016 Abhishek Kumar vs ITO Page 2 of 2 questioned then the foundational fact questioned is to be first decided as per law on facts applicable to it. Accordingly, the order having been passed without deciding the jurisdictional issue, is set aside and the issue is restored back to the CIT(A) with a direction to pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard. The said order was pronounced on the date of hearing itself in the open Court.