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Income Tax Appellate Tribunal, DELHI BENCH ‘SMC-2’, NEW DELHI
Before: SHRI H.S. SIDHU
Date of Hearing : 22-09-2016 Date of Order : 25-10-2016
ORDER PER H.S. SIDHU, J.M.
This appeal has been filed by the Assessee against the order dated 6.8.2015 of the Ld. CIT(A)-19, New Delhi relating to assessment year 2011-12.
The grounds raised by the assessee read as under:- I, Suman Jha, is an individual carrying business of Civil construction in my individual capacity. My case assessed under section 148 of the Income Tax Act, 1961. Demand calculated by A.a. is prejudicial to me. A.O. do not accept my request dated 14/03/2013 to accept and process Online Return filled on 26/09/2012. Contention of the A.O. was Assessee filed Return manually on 14/03/2012
and another return through E filling on 26/09/2012 and both return mentioned "Original" in the column, whether Original or Revised Return? During assessment A.O. has rejected the return so filed E-return on 26109/2012 and request on dated 14/03/2013 to continue E-return and withdraw manual return which had got filled by mistake on part of Assessee, also ejected. Even A.I. ignore the provision of section 44AB of Income Tax Act, 1961.
"On the facts and in the circumstances of the case and in law the Assessing Officer (or the Commissioner of Income-tax (Appeals)' where an appeal is filed before the Tribunal against the order of Commissioner (Appeals)) erred in order no 13, 2014-2015 without appreciating the fact".
A prayer should be made for either accept E-return filled or allow me to file afresh return of Assessment Year 2011-12. Hoping for your kind acceptance. Deletion or addition/disallowance after taking relevant ground as under: • I am not agreeing with the computation of Income made by assessing officer. • During the assessment, sec 44AB of Income Tax Act has not been considered by assessing officer • Demand calculated by A.O. is Prejudicial to me and, if appeal is not allowed to be proceeded it amounting to against the law. • I have valid reason for making appeal.
• I am genuine in the eye of law and followed valid procedure for computation of income. Hope above ground of appeal is valid for taking the matter in appeal.”
Facts narrated by the revenue authorities are not disputed by both the parties, hence, the same are not repeated here for the sake of convenience.
At the time of hearing, Ld. Counsel of the assessee has stated that AO has passed the assessment order u/s. 144 of the Income Tax Act, 1961, which is against the principles of natural justice, as no adequate opportunity of being heard was allowed to the assessee by the AO. He further stated that Ld. CIT(A) has passed a non-speaking order. Therefore, he requested that the addition in dispute may be deleted. 5. On the other hand, Ld. DR relied upon the orders of the authorities below. 6. I have heard both the parties and perused the records, especially the impugned order passed by the Ld. CIT(A), I find that the AO while completing the assessment u/s. 144/148 of the I.T. Act, 1961 vide his order dated 18.3.2014 has observed as under:- “In view of the above facts that the case is going to be barred by limitation. In the absence of any reply and non-cooperative attitude on the part of the assessee, I am satisfied that the assessee has no explanation to furnish and assessee is deliberately avoiding the assessment proceedings. Therefore, I am left with no other alternative except to complete the assessment ex- parte u/s. 144 of the I.T. Act, 1961 on the basis of material available on record and to the best of my judgments.”
6.1 I also find that Ld. CIT(A) has given his finding in the impugned order 6.8.2015 vide para no. 7 of his order as under:-
“7. The submissions made by the appellant have been carefully considered. It is a fact that the first return was filed on 14.3.2012 with respect to assessment year 2011-12 i.e., it was a return filed u/s. 139(4) of the Act. The online return was filed by 26.9.2012. This return also been filed as the “original return” and not a revised return. The Hon’ble Supreme Court in the case of Kumar Jagdish Chand Sinha vs. CIT 222 ITR 67 has held that the return filed u/s. 139(4) of the Act cannot be revised u/s. 139(5) of the Act. Therefore, return filed online on 26.9.2012 cannot be treated as revised return to be substituted for the original return filed. The same is non-est and cannot be considered for the purpose of assessment.”
6.2 In view of the above, I find that AO in his order has observed that the case is going to be barred by limitation. In the absence of any reply and non-cooperative attitude on the part of the assessee, AO was satisfied that the assessee has no explanation to furnish and assessee is deliberately avoiding the assessment proceedings.
Therefore, he left with no other alternative except to complete the assessment ex-parte u/s. 144 of the I.T. Act, 1961 on the basis of material available on record and to the best of his judgments.
However, the ld. CIT(A) has observed that it is a fact that the first return was filed on 14.3.2012 with respect to assessment year 2011-12 i.e., assessee filed return u/s. 139(4) of the Act. The online return was filed by 26.9.2012. This return also been filed as the “original return” and not a revised return. The Hon’ble Supreme Court in the case of Kumar Jagdish Chand Sinha vs. CIT 222 ITR 67 has held that the return filed u/s. 139(4) of the Act cannot be revised u/s. 139(5) of the Act. Therefore, return filed online on 26.9.2012 cannot be treated as revised return to be substituted for the original return filed. The same was non-est and cannot be considered for the purpose of assessment. In my considered opinion, the Ld. CIT(A) has passed a non-speaking order and the AO has passed an exparte order. In view of the above, I am of the considered view that in the interest of justice, one more opportunity may be granted to the assessee to substantiate his claim before the AO. Accordingly, I remit back the issues in dispute to the file of the AO to consider the same afresh, under the law, after giving adequate opportunity of being heard to the assessee. However, the assessee is also directed to produce all the evidences/ documents before the AO to substantiate his claim and fully cooperate with the AO during the proceedings.
In the result, the Appeal filed by the Assessee stands allowed for statistical purpose.