What did the Tribunal hold?

The Tribunal held that jurisdictional issues cannot be dismissed as general grounds. Such foundational issues require a speaking order for adjudication.

The assessee challenged the assessment order, arguing it was void ab initio due to improper service of notices and lack of jurisdiction. The CIT(A) dismissed this ground as general, which the assessee appealed.

What were the issues?

Whether the assessment order is void ab initio due to improper service of notices and lack of jurisdiction, and if the CIT(A) erred in dismissing this ground as general.

Shri Rakesh Kumar vs ITO | s.144 | ITAT Delhi 2016

Income Tax Appellate Tribunal, DELHI BENCH: ‘SMC-II’ NEW DELHI

Before: SMT DIVA SINGH

For Respondent: Ms. Anima Barnwal, Sr. DR

Hearing: 02.08.2016Pronounced: 20.09.2016

Date of Hearing 02.08.2016 Date of Pronouncement 20.09.2016 ORDER The present appeal has been filed by the assessee assailing the correctness of the order dated 13.05.2015 of CIT(A)-19, New Delhi pertaining to 2007-08 assessment year on various grounds raised by the assessee in the present appeal.

2. Although various grounds have been raised by the assessee in the present appeal.

Ld. AR inviting attention to Ground No.1 & 2 submitted that the order passed by the AO u/s 144 is bad in law on account of which the assessment is void ab-initio. In support of the said arguments, the following two grounds raised in the present appeal are extracted hereunder:-

BECAUSE, the ‘appellant’ denies his liability to be assessed in terms of notice dated 21.07.2008 issued to him under section 143(2) of the Act.

BECAUSE, there is no valid service of the ‘Notice’ not being in conformity with law in this regard, consequently the assessment order dated 15.12.2009 (passed in pursuance thereof) is void ab-initio.”

2.1. Inviting attention to the impugned order it was his submission that the Ground No.3 before the CIT(A) specifically addressed this prayer. The CIT(A) in the order under I.T.A .No.-4540/Del/2015 challenge it was submitted though has set out the facts however while adjudicating dismissed the same in para 6 holding that the ground is general in nature requiring no adjudication. Accordingly, it was his prayer that the proceedings be quashed on the grounds of lack of jurisdiction. The Ld.Sr.DR requested that the matter may be restored. The record shows that the assessee agitated before the CIT(A) lack of notice. The specific ground is extracted hereunder:-

(iii) “On the facts and circumstances of the case Learned A.O has erred both in eye of law and on facts in issuing the various notices under the Income Tax Act on wrong address and thus framing an assessment u/s 144.”

2.2. A perusal of the finding arrived at in para 6 page 4 shows that it was dismissed holding as under:-

“Ground Nos.1,2,3,7 & 8 are general in nature and require no adjudication.”

Accordingly after considering the submissions of the parties before the Bench, I am of the view that the impugned order cannot be upheld. The Jurisdictional issues agitated by an assessee cannot be dismissed as a general ground requiring no adjudication. It is the foundational issue which first needs to be addressed by a speaking order. In view thereof the issue is set aside back to the file of the CIT(A) with the direction to specifically address the jurisdictional issue on facts first by way of a speaking order in accordance with law and then proceed to address the issue on merits if need be.

In the result, the appeal of the assessee is allowed for statistical purposes. The order is pronounced in the open court on 20th September 2016.

SHRI RAKESH KUMAR,DELHI vs. ITO, NEW DELHI

What did the Tribunal hold?

What were the facts?

What were the issues?

Which sections of the Income-tax Act were involved?

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