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Income Tax Appellate Tribunal, DELHI BENCH: ‘A’ NEW DELHI
Before: SMT DIVA SINGH & SH.PRASHANT MAHARISHI
Date of Hearing 17.03.2016 Date of Pronouncement 03.05.2016 ORDER
PER DIVA SINGH, JM
The present appeal has been filed by the assessee assailing the correctness of the order dated 17.11.2015 of CIT(A)-12, New Delhi pertaining to 2007–08 assessment year on various grounds including Ground No. 4 and 5 which read as under:-
4. “That the ex-parte order passed by the Assessing Authority is against the principles of natural justice as no notice for the fixation of case was even served to the assessee and he was prevented to the sufficient cause to comply the case and file the necessary documents of scrutiny case and there is difference between the issuance and service of the notice.
That the Assessing Authority while passing the assessment order has not passed the best judgement order as the assessing Authority failed to consider the material adduced and available on the record & taken the cash deposit in the bank was the income of the assessee for the year and even no reasonable and proper opportunity has been provided prior to the addition of Rs.1065050/- in the declared income.”
I.T.A .No.-158/Del/2016
The Ld. AR made a prayer that inadvertently in the grounds mentioned reference has been made to the Assessing Officer whereas the same should be read as CIT(A) as the grievance is posed to the order of the CIT(A). Inviting attention to the impugned order page 2, it was his submission that before the CIT(A), Grounds No. 4 and 5 were raised specifically assailing the correctness of the order of the Assessing Officer assailing that no notice for fixing the case for hearing was served upon the assessee and on account of this fact compliance could not be made.
While arriving at the conclusion in para 10.6 it was submitted the Ld. CIT(A) has failed to take into consideration the affidavit filed by the assessee [copy of which is placed at paper book page No. 10 and 11]. Reference to this fact it was submitted is made by the CIT(A) at page 5 in para 8.1 that an affidavit has been filed as Annexure A:-
1. “That the ex-parte order u/s 144 was framed vide order dated 29.12.2009 which was received by the assessee on 30.03.2010 on the ground that none appeared on 05.06.2009, 17.11.2009 & 09.12.2009 and none of the notices was received by the assessee and the member of the family. In this connection, I am filing the affidavit stating that no notice for the fixation of case was received & served to the assessee for which the Affidavit is enclosed herewith at Annexure-A.” (emphasis provided) 2.1. In the facts of the present case it was submitted that as the assessment order is passed under section 144 accordingly fresh evidence was sought to be placed before the CIT(A). The said evidence was not taken on record (copy of this application moved is placed at pages 4 and 5 of the paper book filed). Accordingly it was his limited prayer that the issue should be restored back to the file of the CIT(A) with a direction to pass a speaking order in accordance with law, considering the affidavit filed it was submitted that in the eventuality, the prayer of the assessee
I.T.A .No.-158/Del/2016 was not to be allowed then fresh evidence may be directed to be taken on record and an order passed in accordance with law taking the necessary evidences into consideration. The Ld. Sr. DR considering the material available on record in the context of the fact that the affidavit was placed before the CIT(A) which admittedly has not been discussed and the finding arrived at is without discussion on this material fact, had no objection if the issues are restored back to the file of the CIT(A) with the direction to decide the specific grievances of the assessee.
We have heard the rival submissions and perused the material available on record. In the light of the facts available on record and the submissions of the parties before the Bench, we find that it would be appropriate to restore the issue back to the Ld.CIT(A) directing the said authority to address the specific grievances posed. Needless to say that the Ld. CIT(A) shall pass a speaking order in accordance with law. The assessee is directed to ensure effective compliance and not to abuse the opportunity so provided.
In the result the appeal of the assessee is allowed for statistical purposes.
The order is pronounced in the open court on 03 of May, 2016.