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Income Tax Appellate Tribunal, DELHI BENCH: ‘SMC-3’ NEW DELHI
Before: SMT DIVA SINGH
Date of Hearing 20.06.2016 Date of Pronouncement 12.07.2016 ORDER PER DIVA SINGH, JM The present appeal has been filed by the assessee assailing the correctness of the order dated 12.06.2014 of CIT(A)-XXIV, New Delhi pertaining to 2005-06 assessment year on the following grounds:-
1. “While adjudicating the appeal of the assessee, the Learned CIT Appeals - XXVI, New Delhi has erred in upholding the decision of the AO of issue of notice u/s 148 as legal and in confirmation with the various provisions of section 144, 147 and 148 of The Income Tax Act, 1961.
2. The Learned CIT Appeals-XXIV has erred by not considering the fact and not adjudicating the ground of appeal
that the notice u/s 148 dated 05.03.2012 has not been received by the assessee and thus has not been properly served on the assessee.
3. The Learned CIT Appeals-XXIV erred in considering the fact that while passing order u/s 144 neither notice u/s 142(1) nor show cause notice u/s 144 has been served on the assessee.
4. The Learned CIT Appeals - XXIV erred in considering the fact that the sum advance to Shri Jaideep Singh was advanced during F.Y. 2003-2004 relevant to A.Y. 2004-2005 and not in F.Y. 2004-2005 relevant to A.Y. 2005-2006 by the assessee, thus there was no gap of five months between sale of Plot and tendering of the sum of Rs.2300000.00 to Shri Jaideep Singh.
I.T.A .No.-4164/Del/2014
The Learned CIT Appeals-XXIV erred in considering the fact that the sum was advanced in A.Y. 2004-05 and suit against dishonor of cheque was filed in A.Y. 2005-06.
The assessee has craved its indulgence to add, alter, amend, delete or to make any additional grounds of appeal at the time of hearing of appeal.”
The Ld.AR inviting attention to the impugned order submitted that the CIT(A) having reproduced the grounds raised by the assessee in para 2 numbering from (i) to (vi) at pages 1 & 2 proceeded to decide the issue only on merits as would be evident from para 4 & 5 of the impugned order. Inviting attention the Ground No.4 & 5 raised before the CIT(A) it was submitted that the assessment should have been quashed as the assessee did not receive any notice u/s 148 nor did the assessee receive any notice for the date of hearing.
The record shows that the assessment order was passed by the AO u/s 144 of the Income Tax Act, 1961. Considering the assessee’s submission that the jurisdictional issue agitated by the assessee has not been decided submitted that instead of quashing the assessment, the issue may be restored which stand was accepted by the Ld.AR.
Having heard the submissions and perused the material available on record, I find that the impugned order in the facts as they stand deserves to be set aside as the Ld. CIT(A) should first decided the jurisdictional issue raised before him. Both the Ld.AR and the Ld. Sr. DR also agree that in the circumstances the issue may be restored to the file to the CIT(A). In view of the above, the impugned order is set aside with the direction to first decide the jurisdictional issue and thereafter if need be proceed to decide the issue on merit.
I.T.A .No.-4164/Del/2014
In the result, the appeal of the assessee is allowed for statistical purposes.
The order is pronounced in the open court on 12th of July, 2016.