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Income Tax Appellate Tribunal, DELHI BENCH: ‘SMC-1’ NEW DELHI
Before: SMT DIVA SINGH
PER DIVA SINGH, JUDICIAL MEMBER
The present appeal has been filed by the assessee assailing the correctness of the order dated 12.01.2016 of CIT(A)-27, New Delhi pertaining to 2006-07 AY. Although grounds assailing the addition on merits and the jurisdiction invoked by the AO are also raised however the parties were heard only in respect of the prayer raised vide Ground No.1. The same is reproduced hereunder:- “On the facts and in the circumstances of the case and in law the Ld.CIT(A) erred in 1. dismissing the appeal without providing due reasonable or adequate opportunity of hearing and also without considering the written and oral submissions made during the hearing in the course of appellate proceedings.”
The Ld.AR referring to the grounds raised submitted that the assessee had filed written submissions before the CIT(A) and presumed that they were sufficient for deciding the issued in his favour and thus did not appear before the said authority.
However, the impugned order it was submitted has been passed without taking into consideration, the written submissions filed. The ld.AR was required to show the written submissions stated to be filed as they do not find any mention in the impugned order.
The Ld.AR stated that he is under instruction that they were filed however he is not able
I.T.A .No.-739/Del/2016 to lay his hands thereon. It was his prayer that an opportunity may be provided and he would undertake that the assessee shall participate in the proceedings in the eventuality, the issue is restored back to the file of the CIT(A).
A perusal of the record shows that the CIT(A) after recording four specific opportunities on which dates the assessee failed to appear proceeded to decide the issues in the following manner:-
4.2. “Further, in view of the provisions of section 251(1)(c), the Commissioner of Income Tax appeals has the power to dispose of an appeal “In any other case, he may pass such orders in the appeal as he thinks fit.” In the instant case there is enough ground of non appearance of the appellant to decide the matter ex-parte, the appeal is decided on the basis of material available on record. Hence, the action of the AO is upheld and the appeal is dismissed.”
It is seen that before the CIT(A), the following grounds had been raised by the assessee:-
“On the facts and in the circumstances of the case and in law the action of the Ld. Assessing Officer erred in :-
1. 1. initiating proceedings u/s 147/148 of the Income Tax Act, 1961 and passing order u/s 143(3)/148 of the Act without there being any valid reason for reopening the assessment; 2. passing order u/s 143(3)/148 of the Act without disposing off the objections to the re-opening of the assessment; 3. making addition of Rs.20 lacs to the returned income treating the share application money received as income from undisclosed sources; are all the most arbitrary, erroneous and illegal and must be quashed with the directions for appropriate relief.”
5. Considering the decision arrived at in the afore-mentioned extract of the impugned order, it cannot be said to be an order in accordance with the Statutory provisions which are set out in sub-section (6) of Section 250 which is extracted hereunder:- PROCEDURE IN APPEAL 250. “(1) …………………………………………. (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)...................................................................”
I.T.A .No.-739/Del/2016 6. Accordingly, accepting the oral undertaking given by the Ld.AR that the assessee shall participate in the proceedings and also taking note of the fact that the aforesaid Statutory mandate is not met by CIT(A) while passing the order, the impugned order is set aside and the issues are restored back to the file of the CIT(A) directing the said authority pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard. The opportunity so provided it is hoped is not abused by the assessee as failing which the Ld.CIT(A) shall be at liberty to pass a speaking order in accordance with law on the basis of material available on record. 7. In the result, the appeal of the assessee is allowed for statistical purposes. The order is pronounced in the open court on 04th of November, 2016.