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Income Tax Appellate Tribunal, DELHI BENCH: ‘SMC-3’ NEW DELHI
Before: SMT DIVA SINGH
ORDER The present appeal has been filed by the assessee assailing the correctness of the order dated 31.03.2014 of CIT(A), Muzaffarnagar pertaining to 2010 –11 assessment year on various grounds.
Right at the outset, it was submitted by the Ld.Sr.DR that the grounds raised in the present appeal do not arise from the impugned order. The Ld.AR responding to the same submitted that this is a specific grievance of the assessee itself as the CIT(A) has passed ex-parte order by cutting & pasting the facts of some other case which are not relatable to the assessee at all. It was submitted that the situation has arisen on account of the fact that the concerned CIT(A) was simultaneously holding charge of two other places alongwith the regular charge of Muzaffarnagar namely CIT(A), Ghaziabad and also CIT(A), Meerut. Accordingly his presence at Muzarfarnagar was more less insignificant resulting in hearings concluded in haste and frequently recording that despite opportunity the assessee is not present. Inviting attention to Form No.35 it was submitted that the assessee
I.T.A .No.-4531/Del/2014 has only assailed the G.P. addition of Rs.12,48,297/-; another addition of Rs.12 lacs; disallowance of expenses of Rs.8,000/-; Rs.1,26,872/- for personal user and depreciation of car on account of no log book when these are considered with the issues which have been discussed in the impugned order it would show that some unconnected issues not relatable to the assessee are considered. Accordingly it was his prayer that the issue may be restored back to the CIT(A) for adjudication afresh. On query it was submitted that he would give his oral undertaking that the assessee shall participate in the proceedings.
Ld.Sr.DR submitted that on consideration of the additions made in the assessment order and the issues considered in the CIT(A)’s order there does appear to be a mis-match. Accordingly he had no objection if the issue is restored to the CIT(A).
Having heard the rival submissions and perused the material available on record, I find that in the interests of justice the impugned order deserves to be set aside and the issues need to be remanded to the CIT(A). It is seen on a consideration of the issues addressed in the assessment order and the impugned order it is evident that there is a contradiction on facts wherein in para 3 the CIT(A) refers to addition of Rs.2 lacs. on account of share application money by the AO. In para 3.2 he refers to addition of Rs.27,82,441/- u/s 43B has been made. Similarly the other additions referred to having been made by the AO are not found addressed in the assessment order. On the other hand, the additions made by the AO are found not discussed in the impugned order. None of the issues considered in the impugned order it is seen are subject matter of addition in the facts of the assessee’s case. Accordingly, it appears that as far as the assessee
I.T.A .No.-4531/Del/2014 is concerned the order under challenge is a non-speaking order as it does not address the grounds raised by the assessee. The reference to opportunities given and adjournment sought accordingly becomes irrelevant. As even if the assessee did not participate in the proceedings the CIT(A) in terms of the sub-section (6) of section 250 is required to set out in writing the points for determination and the decision thereon supported by reasons for the conclusion. The said exercise is found to be missing. Accordingly to make up the statutory deficit available on record the issue is set aside back to the CIT(A) with a direction to pass a speaking order in accordance with law in terms of the statutory mandate. Needless to say that a reasonable opportunity of being heard shall be provided to the assessee by the CIT(A) before passing the order. The opportunity so provided it is hope 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.
In the result, the appeal of the assessee is allowed for statistical purposes.
The order is pronounced in the open court on 19th August 2016.