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Income Tax Appellate Tribunal, DELHI BENCH: ‘SMC-II’ NEW DELHI
Before: SMT DIVA SINGH
ORDER The present appeal has been filed by the assessee assailing the correctness of the order passed in Appeal No.240/14-15/CIT(A)-42 dated NIL pertaining to 2007-08 AY on various grounds. The assessee challenged the jurisdiction of the AO to make the additions and the action of the CIT(A) in upholding the jurisdiction and the addition on merits.
Both the parties have been heard. The Ld.AR carrying us through the impugned order submitted that the conclusion drawn by the CIT(A) at page 8 para 6.4 on facts is incorrect and has not taken into consideration, the complete gamut of submissions advanced on behalf of the assessee. A perusal of the impugned order page 7, it was submitted would show that reference thereto is made to the fresh evidences filed by the assessee. A perusal of para 3 page 2 of the impugned order which presumably is passed sometime after the last date of hearing i.e. 04.04.2016 as mentioned on page 1 of the impugned order, it was submitted would show that order has been passed on the basis of written and oral submission dated 24.07.2015.
Reliance, it was submitted has been placed on the Remand Report of the AO and time had been sought by the assessee to effectively rebut the same in view of incapacity of the Ld.AR engaged by the assessee who had undergone a cataract operation. This fact, it was submitted was evident from para 5.5.2 of the impugned order which would show that ultimately the appeal was decided on the basis of material available on record wherein the effective opportunity of rebutting the Remand Report relied upon by the AO was not made available to the assessee.
I.T.A .No.-4597/Del/2016 Naharpuria Impex Pvt.Ltd. vs ITO
Page 2 of 2 Thus, infact the opportunity of being heard was not provided to the assessee. Accordingly, it was his prayer that the issue be restored. 3. Considering the material available on record, the Ld.Sr.DR requested that the issue be restored to the AO and not to the CIT(A) as admittedly fresh evidences have been filed which need to be considered by the AO. The Ld.AR also supported the said prayer and stated restoring the issue to the file of the CIT(A) would not serve any purpose as fresh evidences need to be considered by the AO. Accordingly taking into consideration the submission of the parties before the Bench and considering the material available on record, I am of the view that the prayer of the parties deserves to be accepted. The impugned order in the peculiar facts and circumstances of the case having been passed without an effective opportunity of being heard is set aside and both the issues i.e. the jurisdictional issue as well as the additions on merit are restored back to the AO with the direction to pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard.
In the result, the appeal of the assessee is allowed for statistical purposes. The order is pronounced in the open court on 21st of December, 2016.