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Income Tax Appellate Tribunal, DELHI BENCH: ‘SMC-3’ NEW DELHI
Before: SMT DIVA SINGH
Date of Hearing 26.09.2016 Date of Pronouncement 07.11.2016 ORDER
The present appeal has been filed by the assessee assailing the correctness of the order dated 16.12.2015 of CIT(A)-1, Gurgaon pertaining to 2011-12 AY on various grounds including Ground Nos. 1 & 2 which read as under:-
“That having regard to the facts and circumstances of the case, Ld.CIT(A) has erred in law and on facts in passing the impugned ex-parte order and that too without granting adequate opportunity of hearing and further erred in observing that the appeal has not been filed within time.
That in any case and in any view of the matter, action of Ld.CIT(A) in passing the impugned ex-parte order is bad in law and against the facts and circumstances of the case.” 2. At the time of hearing, an adjournment was moved by the Revenue. However, considering the material available on record and after hearing the Ld.AR it was considered appropriate to reject the adjournment moved and decide the appeal ex-parte qua the Revenue respondent on merit on the above-mentioned grounds.
Ld. AR inviting attention to the order under challenge submitted that the CIT(A) has dismissed the appeal of the assessee holding that the assessee is not serious in pursuing the present appeal. Apart from that referring to para 1 of the impugned order it was submitted that the CIT(A) has wrongly held that the appeal filed by the assessee is late. The error in the conclusion drawn by the CIT(A) it was submitted is evident from the said para itself:- “This Appeal has been instituted on 01.07.2014 against the order u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as “the Act” dated 30.03.2014 (served on 04.06.2014) passed by Sh.P.B.Verma, Income Tax Officer, Ward- 1(1), Gurgaon. As per ITNS-51, the appeal has not been filed within time and there is no application for condonation of delay, the concerned AO did not desire to be present at the hearing.” (emphasis provided) 3.1. Accordingly, it was his prayer that the CIT(A) may be directed to decide the appeal on merit.
I have heard the submissions and perused the material available on record. On a reading of the above extracted para of the impugned order it is noticed that the CIT(A) did not care to show cause the assessee specifying the delay noticed by him. I further find that when he has himself observed that the appeal has been instituted on 01.07.2014 and the order appealed against is served on the assessee on 04.06.2014 the occasion to conclude that the appeal was time barred did not arise. In these peculiar facts and circumstances, considering the Statutory position as set out in Section 249(2) of the Income Tax Act, 1961 which permits the filing of appeal within thirty days there cannot be any occasion to conclude that the appeal is time barred. Even otherwise, it is well settled that incase the Appellate Authority is of the view that the jurisdiction invoked is time barred then it is incumbent on the said Authority to put the litigant to notice of this fact and provide a specific opportunity to put forth its explanation and only thereafter a conclusion warranted on facts can be drawn. In the absence of following these specific procedures, the conclusion drawn is open to the criticism of being biased and prejudiced.
However, in the facts of the present case, it is seen that there is no delay by the assessee in invoking the jurisdiction of CIT(A) and the aforesaid conclusion was incorrect.
4.1. It is further seen that even otherwise the impugned order dismissing the assessee’s appeal cannot be upheld as it has been passed without following the I.T.A .No.-1303/Del/2016 JAGMEET SINGH BRAR VS ITO procedure laid down in Section 250 of the Income Tax Act 1961. The procedure which a CIT(A) is required to follow has been set out in section 250 of the Act. The same is reproduced hereunder:-
PROCEDURE IN APPEAL “(1) The Commissioner (Appeals) shall fix a day and place for the hearing of the appeal, and shall give notice of the same to the appellant and to the Assessing Officer against whose order the appeal is preferred. (2) ………………………………………………… (3) ………………………………………………… (4) …………………………………………………. (5) …………………………………………………. (6) The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision. (6A)...................................................................” 4.2. A perusal of the above sub-section (1) of section 250 read alongwith the impugned order shows that though the reference has been made to three specific dates for which notices are stated to have been issued however what was the mode followed or fate of the notices is not addressed. Thus whether they were sent to the correct address upon the assessee or not is itself not coming out from the record. Even otherwise the order does not meet the requirements of sub-section (6) of section 250. A perusal of the same would show that the CIT(A) is required to pass a speaking order. The aforesaid sub-section has set out that the order passed necessarily must set out points for determination and the decision thereon supported by reasons for arriving at the conclusion to either allow or reject etc. The said mandatory exercise in the peculiar facts of the present case is found to be not fulfilled. Accordingly holding the impugned order violative of the statutory mandate it is set aside back to the file of the CIT(A) to make good the statutory deficit. Needless to say that before passing the order, a reasonable opportunity shall be provided to the assessee. While so directing it is hoped that the opportunity so provided is not abused by the assessee and is utilized in good faith as failing which the Ld. CIT(A) would be at liberty to pass a speaking order in accordance with law on the basis of material available on record.
I.T.A .No.-1303/Del/2016 JAGMEET SINGH BRAR VS ITO
In the result, the appeal of the assessee is allowed for statistical purposes. The order is pronounced in the open court on 07th of November, 2016.