The Income Tax Appellate Tribunal (ITAT) in Delhi recently addressed an appeal filed by the assessee, Satish Tyagi, against the order of the Commissioner of Income Tax (Appeals)-Ghaziabad. The primary issue revolved around an ex-parte assessment passed under Section 144 of the Income Tax Act, which the assessee claimed did not provide him with adequate opportunity to present his case.
In the case, Tyagi’s counsel urged that the assessment should be returned to the Assessing Officer (AO) for re-evaluation in accordance with the law, citing an identical fact situation involving Tyagi’s brother, Amrish Kumar. The AO, it was argued, had insufficiently considered the facts and circumstances, leading to the ex-parte assessment under Section 144. The Revenue, however, argued that the reopening was for revenue’s benefit and, therefore, the returned income could not be assessed lower in the reassessment process.
Upon review, the ITAT decided in favour of Tyagi, ordering the appeal to be returned to the AO for a fresh evaluation. The AO was instructed to redetermine the issue impartially, in accordance with the law, and to consider the judgment of the Supreme Court in the case of CIT vs. Sun Engineering Works Pvt. Ltd.
FULL TEXT OF THE ORDER OF ITAT DELHI
The captioned appeal has been filed by the assessee against the order of the ld. Commissioner of Income Tax (Appeals)-Ghaziabad (‘CIT(A)’ in short) dated 24.09.2019 arising from the assessment order dated 26.12.2017 passed by the Assessing Officer (AO) under Section 143(3) r.w. Section 147 of the Income Tax Act, 1961 (the Act) concerning AY 2010-11.
2. When the matter was called for hearing, the ld. counsel for the assessee submitted that multiple grounds have been raised in the grounds of appeal but only remedy that assessee seeks to pursue at this point of time is the restoration of ex-parte assessment passed under Section 144 of the Act to the file of the Assessing Officer for fresh consideration of the facts and circumstances of the case in accordance with law.
3. The ld. counsel further submits that in identical fact situation, in the case of (his brother) Shri Amrish Kumar v/s ITO in ITA No.3924/Del/2019 Assessment Year 2010-11 order dated 05.04.2023, the matter has been restored to the file of the Assessing Officer for fresh consideration of subject matter of dispute in accordance with law.
4. The relevant operative paragraph of the order of the Coordinate Bench in the case of Shri Amrish Kumar (supra) is reproduced hereunder:
“8. Upon careful consideration, we find that the assessee is an illiterate farmer and claims that he was not properly presented in the assessment and appellate proceedings. Moreover, the assessee claims that he was misguided by the consultant. We further note that the assessee claims for u/s 54F exemption has also been denied by referring the decision of the Hon’ble Apex Court in the case of Goetze (India) Ltd.. We find in the interest of justice will be well served if the matter is remitted to the file of the Assessing Officer to consider the issue afresh. Furthermore, as regards, the assessee claims for exemption u/s 54F of the Act, we note that Hon’ble Apex Court in Goetze (India) Ltd. (supra) the Hon’ble Apex Court has expounded that the said decision would not impinge upon the powers of ITAT in dealing with the claim otherwise than by revised return. Accordingly, we direct that the above ground be admitted and decided as per law. Needless to say the assessee be given opportunity of being heard.”
5. The ld. DR for The Revenue, on the other hand, contends that the reopening action is for the benefit of revenue as held in Sun Engineering and therefore the income returned cannot be assessed at a lower figure in the reassessment proceedings.
6. In consonance with the restoration made in Amrish Kumar, the captioned appeal is also restored to the file of the Assessing Officer for fresh adjudication of points raised in accordance with law after giving proper opportunity to the assessee. The Assessing Officer shall redetermine the issue without any fatters and in accordance with law and after giving the weight to the ration of judgment of Hon’ble Supreme Court in the case of CIT vs. Sun Engineering Works Pvt. Ltd. (1992) 198 ITR 294 (SC).
7. In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open Court on 13/06/2023