KAMAL KISHORE AGARWAL,DELHI vs. ITO, NEW DELHI

reproduced from page 6 of the impugned order:-

“In his letter dated 01.02.2016 the assessee has made bald allegations against the A.O. without any documentary evidence. The assessee never challenged the grounds for reopening during the assessment proceedings. The grounds of re- opening was duly served upon him along with the notice u/s 148. In response to this notice the assessee vide his letter dated 18.06.2010 had stated that the return filed by him u/s 139(1) should be treated as return filed in response to the notice u/s 148. The assessee didn’t take any objection to the re-opening and made his submissions before the A.O. on merit of the case. In view of this the allegation that the A.O anti dated the reasons for re-opening is baseless and is rejected.” (emphasis provided) 4. Assailing the said conclusion, Ld. AR, Mr.Manoj Kumar, CA appearing on behalf of the assessee, submitted that he had been seeking time to file Paper Book consisting of relevant evidences as the assessee has copies of both the reasons recorded by the Assessing Officer and the assessee was ready to file an affidavit in support of the said assertion. Accordingly, after considering the submissions of the parties before the Bench, in view of the serious issues raised in the present appeal, it is deemed appropriate to set aside the issues back to the file of the CIT(A) directing him to first adjudicate upon the jurisdictional issues. While so directing, it is made clear that the mere fact that the assessee has not challenged the reopening at the assessment stage itself, does not mean that the assessee has given up its rights to challenge the same at a later stage. When jurisdiction of an authority is questioned I.T.A .No.-2099/Del/2016 Kamal Kishore Agarwal vs ITO

Page 3 of 3 then it is incumbent upon the adjudication authority to address the fact and decide by a speaking order whether the authority who passed the order had the jurisdiction to pass the order. Being a fundamental foundational fact, its existence cannot be left in limbo and the issue is necessarily first required to be addressed by the adjudication authority. In case it is found that the Assessing Officer has substituted his original reasons recorded for reopening the proceedings by another order than this is a very serious lapse and the issue may also necessitate a redressal for internal administrative purposes also. Thus, evidence in support thereof it is directed to be filed before the CIT(A). The CIT(A) considering the same shall pass a speaking order in accordance with law after affording the assessee a reasonable opportunity of being heard.