Hari Sharan Devgan, Delhi vs Assessee

Hari Sharan Devgan, vs Income Tax Officer, E-2/11, Ganga Triveni Ward 21(3), New Delhi. Apartments, Sector-9, Rohini, Delhi-110085 (Appellant) (Respondent) Appellant by: Shri Ajay K. Agarwal, CA Respondent by : Shri T. Vasanthan, Sr. DR Date of Hearing: 10.3.2015 Date of pronouncement: ORDER

PER CHANDRA MOHAN GARG, JUDICIAL MEMBER

The above appeal has been preferred by the assessee against the order of

the CIT(A)-XXII, New Delhi dated 29.01.2013 in Appeal No. 223/11-12 for

AY 2009-10.

2. First of all, we take up ground no. 5 of the assessee which reads as

under:-

"5. That the ld. CIT(A) dismissed the appeal without considering the detailed statement of facts regarding non- applicability of Sec 68 and applicability of Sec 44AF submitted with Form No.35 whereas notice of CIT(A) us/ 250 clearly 1 ITA No. 2213/D/2013 Asstt.Year: 2009-10

states that the appeal will be decided on the written submission in the case of non-appearance".

3. Apropos ground no.5, ld. AR submitted that the AO passed ex parte order

u/s 144 of the Act on 21.12.2011 without affording due opportunity of hearing

for the assessee. The ld. AR further pointed out that the AO made an

unsustainable and unjustified addition u/s 68 of the Act without any basis. Ld.

AR further contended that the aggrieved assessee preferred an appeal before the

CIT(A) which was also decided ex parte without affording due opportunity of

hearing and without considering the detailed statement of facts regarding non-

applicability of section 68 of the Act and applicability of section 44AF of the

Act submitted along with Form No.35 of the Act. Ld. AR further pointed out

that as per provisions of section 250 of the Act, appeal shall be decided on

written submissions and explanation of the assessee in the case of non-

appearance of the assessee and his representative during the first appellate

proceedings. Ld. DR vehemently contended that the authorities below clearly

violated the principles of natural justice and passed assessment and impugned

order without affording due opportunity of hearing for the assessee, therefore,

the same be set aside by restoring the case to the assessment stage to the file of

AO.

4. Ld. DR replied that if despite due service of notice, assessee and his

representative are not appearing during the assessment proceedings, then the

AO had no option but to complete the proceedings on the basis of material

2 ITA No. 2213/D/2013 Asstt.Year: 2009-10

available on record before him. Ld. DR fairly accepted that the CIT(A) was

duty bound to adjudicate the issue on the basis of written submissions and

explanation filed by the assessee during first appellate proceedings and also on

the basis of assessment records but the CIT(A) has passed a brief and cryptic

order by applying decision of ITAT Delhi in the case of CIT vs Multiplan India

(P) Ltd. 38 ITD 230 (Delhi). Ld. DR finally submitted that the department has

no serious objection if the matter is restored to the file of AO for de novo

framing of assessment.

5. On careful consideration of above submissions, we are of the considered

view that the asseessee was not granted due opportunity of hearing before the

authorities below which is a clear violation of principles of natural justice. We

also note that the CIT(A) has dismissed the appeal of the assessee without

addressing and adjudicating the issues raised by the assessee in the grounds

placed during first appellate proceedings and as per provisions of section 250 of

the Act, the CIT(A) is duty bound to address and adjudicate all the issues on

merits on the basis of material available on record even in the situation of

absence of assessee and his representative. The CIT(A) is not empowered to

dismiss the appeal for non-prosecution by following the order of the ITAT

Delhi in the case of Multiplan (supra). Hence, we are of the considered opinion

that the authorities below framed ex parte assessment and dismissed the appeal

of the assessee ex parte without adjudicating the grounds raised by the assessee

3 ITA No. 2213/D/2013 Asstt.Year: 2009-10

before the CIT(A). Therefore, assessment order as well as impugned order are

set aside and the case is restored to the file of AO for fresh de novo framing of

assessment after affording due opportunity of hearing for the assessee.

Needless to say that the assessee shall cooperate with the assessee during fresh

assessment proceedings. Accordingly, ground no. 5 of the assessee is deemed

to be allowed for statistical purposes.

6. Since by the earlier part of this order, we have restored the case to the file

of AO for a fresh framing of assessment, therefore, other grounds raised by the

assessee do not survive for adjudication on merits and we dismiss the same as

being infructuous.

7. In the result, the appeal of the assessee is deemed to be allowed for

statistical purposes.

Order pronounced in the open court on 16.3.2015.

Sd/- Sd/-

(S. V. MEHROTRA) (CHANDRAMOHAN GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER

DT. 16th MARCH 2015 'GS'

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Copy forwarded to:-

1. Appellant 2. Respondent 3. C.I.T.(A) 4. C.I.T. 5. DR By Order

Asstt.Registrar

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