SHRI DHARAM PAL,FARIDABAD vs. ITO, FARIDABAD

Date of Hearing 14.03.2016 Date of Pronouncement 05.05.2016 ORDER The present appeal has been filed by the assessee assailing the correctness of the order dated 26/08/2013 of CIT(A), Faridabad pertaining to 2000 – 01 assessment year on the following two grounds raised before us:-

made before him in the present case.

2. That the Ld.CIT(A), Faridabad has grossly erred by not deciding the application under rule 46A[1][d] of the Income Tax Rules, 1962 to take up evidences/ documents on record and consider those while deciding appeal before him.”

2. The Revenue moved an adjournment petition stating that the Ld. Sr. DR is on leave. No one was present in support of the petition moved. On going through the same, it is also seen that apart from carrying some indecipherable initial it neither addresses the name nor the designation of the person petitioning for time.

I.T.A .No.-1840/Del/2014 The moving of the petition in such a casual way is not appropriate. Moreover considering the material available on record and hearing the submissions of the Ld. AR it was considered appropriate to proceed with the present appeal ex-parte qua the Revenue respondent on merit.

As a result of this the grounds had to be amended. It was also the submission that fresh evidences in support of the claim had to be filed which were also rejected by the CIT(A). In the circumstances it was his limited prayer that the Revenue may be directed to decide the issue in accordance with law taking into consideration the relevant facts and evidences.

I.T.A .No.-1840/Del/2014 amounting to Rs.9,41,856/- was paid to the assessee. Despite issuance of notice to the assessee, return was not filed leading to the passing of the ex-parte order by the AO. As result of which total income of the assessee was assessed at Rs.9,81,860/-. The assessee assailed this before the CIT(A) vide grounds filed on 26/08/2013. These grounds were subsequently sought to be amended on 21.02.2011. Considering the limited prayer of the assessee who has submitted that the grounds were required to be modified in view of the judgement of the Apex court in the case of CIT versus Ghanshyam Das HUF (cited supra). I am of the view that in the peculiar facts and circumstances of the case, the Ld. CIT(A), Faridabad should have admitted the amended grounds and should not have proceeded on a hyper technical issue by refusing to permit the assessee to amend the grounds filed. The Ld. Commissioner should have taken note of the fact that this was the First appeal against the assessment order and there was no reasonable ground on the basis of which the grounds could not have been amended before the CIT(A). The judgements relied upon by the CIT(A) namely Jute Corporation of India vs CIT [1991] 187 ITR 688 (SC) and others proceed entirely on different sets of facts and circumstances. The said decisions are a precedent to be considered while deciding whether a party can be allowed to raise any issue before the Tribunal especially an issue was never agitated before the First Appellate Authority or before the AO. The reliance placed upon those decisions in the facts of the present case is entirely misconceived. Accordingly being of the view that before the First Appellate Authority the assessee was at liberty to raise any ground in support of its claim before the AO. The Ld.

I.T.A .No.-1840/Del/2014 Commissioner was required under law to decide the same. I find that in the peculiar facts and circumstances of the case the said order cannot be upheld and the issue has to be restored back to the file of the CIT(A). Addressing this aspect the Ld. AR submitted that the proceedings before the AO were ex-parte proceedings as the AO has passed an order u/s 144 of the Income Tax Act, 1961.

Accordingly, in the circumstances, it would be more appropriate to restore the issue back to the AO. Considering the material available on record the said prayer was found to be correct and justified on record. In the absence of any representation on the part of the Revenue, I am of the view that in the peculiar facts and circumstances of the case it is appropriate to set aside the impugned order and restore the issue back to the file of AO with the direction to pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard. The assessee is granted liberty to file fresh evidences in support of its claim which admittedly it could not file. While so directing it is hoped that the opportunity provided to the assessee in good faith is not abused and the assessee utilizes the opportunity by providing effective representation before the AO as failing which the AO would be at liberty to pass a speaking order in accordance with law.

The order is pronounced in the open court on 05 of May, 2016.