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Income Tax Appellate Tribunal, DELHI BENCH: ‘SMC-II’ NEW DELHI
Before: SMT DIVA SINGH
Date of Hearing 04.08.2016 Date of Pronouncement 28.09.2016 ORDER These are 5 appeals filed by the assessee assailing the correctness of the consolidated orders dated 15.10.2013 of CIT(A), Bareilly pertaining to 2001 - 02, 2002 - 03, 2004-05 and order dated 14.09.2013 of CIT(A), Bareilly pertaining to 2003-04 and 2005-06 assessment year respectively.
In all these appeals, the Registry has pointed out a delay of 38 days. The Ld. AR inviting attention to the condonation of delay petition filed along with the affidavit of the assessee submitted that the delay has occurred on account of the fact that the ex-parte order of the CIT(A) was not received by the assessee within time and the assessee learnt of these orders only sometime when recovery proceedings were taken by the Revenue against the assessee. Accordingly, pursuant to this the assessee filed an application to obtain copy of the orders of the CIT(A). Accordingly, it was his submission that for reasons beyond his control, the delay has occurred.
I.T.A .No.-5516 to 5520/Del/2015 2.1. Considering the condonation of delay petition filed and the affidavit filed, the Ld. Sr.
DR fairly submitted that she has no objection if the delay is condoned.
In the light of the submissions of parties before the Bench and considering the prayer of the assessee supported by way of an affidavit, the delay of 38 days is condoned in each of these appeals.
The parties were heard only in respect of Ground No. 1 which is stated to be common in all the appeals. The same for ready reference is extracted from and reads as under:-
“On the facts and in the circumstances of the case and in law the Ld.CIT(A erred in passing the impugned order precipitately and without providing reasonable, adequate and proper opportunity of hearing and against the names of natural justice such that the impugned order is liable to be set aside with directions for re-adjudication the grounds of appeal.”
The Ld. AR inviting attention to the said ground submitted that the notice stated to have been sent through speed post on 03.10.2013 fixing the hearing of the appeal at Camp Moradabad was never received by the assessee. In response to a query, it was submitted that the address of the assessee continues to be correct. However the said order, it was submitted was not received. Accordingly it was his prayer that the impugned order may be set-aside and the opportunity of being heard may be granted to the assessee. The said prayer was not objected to by the Ld. Sr. DR.
Having heard the rival submissions and perused the material available on record, it is seen that even otherwise the orders cannot be said to be orders which meet the statutory requirements as set out in sub-section (6) of section 250 of the Income Tax Act, 1961. The Commissioner, Income Tax (Appeals) while deciding the appeals is required to adhere to the procedures set out in section 250 of the Income Tax Act, 1961. Sub-section (6) of section 250 mandates that the order of the Commissioner (Appeals) disposing of the appeal
I.T.A .No.-5516 to 5520/Del/2015 shall be in writing and shall state the point of determination, the decision thereon and the reason for the decision. On a reading of the two set of consolidated orders challenged before the ITAT, it is seen that the said requirement is not fulfilled as the Ld. Commissioner(Appeals) was of the view that he was not required to give separate reasons for confirming the order of the AO. The said understanding flies in the face of the statutory mandate. The Statute which empowers the Ld. Commissioner to decide the appeals set out the procedure to be adhered to. The same cannot be said to the complied with without even setting out the basic facts and without even setting out the points of determination in the appeals filed and then without addressing the reasons for concurring with the conclusion arrived at the Statutory mandate cannot be said to be fulfilled. Even otherwise, it is not coming out from the record whether this was the sole attempt made to issue notice to the assessee or were there other instances also. Accordingly considering the overall factual matrix, the impugned order is set aside and the issues are restored back to the file of the CIT(A) with a direction to pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard. While so directing it is made clear that the opportunity so provided in good faith, it is hoped is not abused by the assessee as failing which the CIT(A) would be at liberty to pass a speaking order on the basis of material available on record. The said order was pronounced in the open Court on the date of hearing itself.
In the result, the appeals of the assessee are allowed for statistical purposes The order is pronounced in the open court on 28th September, 2016.