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Income Tax Appellate Tribunal, DELHI BENCH “SMC”: NEW DELHI
Before: SHRI KUL BHARAT
O R D E R PER KUL BHARAT, JM:
This appeal, by the assessee, is directed against the order of the learned Commissioner of Income-tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi, dated 09.01.2023, pertaining to the assessment year 2017-18. The assessee has raised following grounds of appeal:
“1. That the Impugned ex parte order passed by the Commissioner of Income Tax (Appeals) upholding the assessment order under Section 144 of the Act. purportedly stated to be passed under Section 143. is without jurisdiction, void and non-est in the eyes of law.
2. That the Ld. C1T(A) erred in ex-parte upholding the assessment order
Assessment Scheme. 2019 without appreciating that e- assessment proceedings is not applicable to assessments framed under Section 144 of the Act and manual assessment has to be carried out by properly serving the statutory notice either by- registered post or through any courier service upon the Appellant.
3. On the facts, in the circumstances of the case and law. the ex-parte impugned order passed by the CIT(A) has failed to adjudicate a few grounds raised before it and therefore the said order is violative of Sub-section 6 of Section 250 of the Act.
4. On the facts and in the circumstances of the case as well as law on the subject, the learned Assessing Officer has erred in passing ex-parte order u/s 144 without giving proper opportunity of being heard.
5. On the facts, in the circumstances of the case and law, the Ld. CIT(A) erred in making disallowance of deduction claimed of Rs.8,38.469/- when the Appellant is eligible to the same and has all the necessary documents and evidence to support the same.
6. On the facts, in the circumstances of the case and law, the Ld. C1T(A) erred in making the disallowance of Rs.6.88,469/- in relation to deductions claimed on account of interest paid on borrowed capital for two house properties, without appreciating that supporting documents (i.e., interest certificates, rent agreement, etc.) could not be furnished as the Appellant was not aware of any pending proceedings against him.
On the facts, in the circumstances of the case and law, the Ld. CIT(A) grossly erred in disallowing the deduction of Rs. 1.50.000/- claimed under chapter Vl-A of the Act. without appreciating that supporting documents could not be furnished as the Appellant was not served with any statutory notice whatsoever.
The Appellant respectfully submits that the above grounds of appeal are independent and without prejudice to one another.”
At the outset learned counsel for the assessee pointed out that the assessee is serving in the Indian Army and at the relevant time he was posted in disturbed
area. The notice issued by the Assessing Officer was not received by the assessee.
Therefore, he could not attend the proceedings before the AO. The learned counsel submitted that the assessee has all documentary evidences in support of the issues raised by the AO.
On the other hand, learned DR supported the orders of the authorities below.
I have heard rival submissions and perused the material available on record.
It is seen from the assessment order that the order has been passed u/s 143(3) of the Act. However, the AO has invoked the provisions of section 144 of the Act. Under these undisputed facts and to subserve the interests of natural justice the impugned assessment order is hereby set aside and the matter is restored to the file of the Assessing Officer to frame the assessment de novo after allowing the assessee to produce material, if any, in support of its claim, of course, after affording reasonable opportunity of being heard to the assessee. I order accordingly.
The grounds raised in the appeal are allowed for statistical purposes.
Appeal of the assessee is allowed for statistical purposes.
Order pronounced in open court on 22.05.2023.