Case Law Details
Onkar Mal Vs ITO (ITAT Jaipur)
The ITAT Jaipur considered the assessee’s appeal against the ex parte order of the CIT(A) for Assessment Year 2009-10 arising from an assessment passed under Section 143(3) read with Section 148 of the Income-tax Act. The assessee challenged both the reopening of the assessment and the addition of ₹5,22,560 made under Section 69. At the outset, the assessee submitted that the CIT(A) had passed the ex parte order without providing a reasonable opportunity of hearing, contending that no notice had been served at the address furnished in Form No. 35. An affidavit supporting this contention was also placed on record.
The Tribunal examined the order of the CIT(A) and found that the appellate authority had not decided the issues on merits. Instead, the CIT(A) had merely upheld the Assessing Officer’s order on the ground that the appellate authority could not substitute its own judgment for that of the Assessing Officer unless the latter’s decision was shown to be biased, irrational, vindictive, or capricious.
The Tribunal held that Section 250(6) mandates the CIT(A) to pass a written order containing reasons for the conclusions reached. Since the impugned order did not satisfy the requirements of Section 250(6), it could not be sustained. Accordingly, in the interest of justice, the Tribunal set aside the ex parte order and restored the matter to the file of the CIT(A) for fresh adjudication after granting the assessee a reasonable and effective opportunity of hearing. The assessee was also directed to appear before the CIT(A) within two months from the date of receipt of the Tribunal’s order. The appeal was allowed for statistical purposes.
FULL TEXT OF THE ORDER OF ITAT JAIPUR
This is an appeal filed by the assessee against the ex parte order of ld.CIT(A)-3, Jaipur dated 10/09/2018 for the A.Y. 2009-10 in the matter of order passed U/s 143(3) read with Section 148 of the Income Tax Act, 1961 (in short the Act).
2. In this appeal, the assessee is aggrieved for reopening of assessment as well as addition of Rs. 5,22,560/- made U/s 69 of the Act.
3. At the outset, the ld AR of the assessee has submitted that the ld. CIT(A) has passed ex parte order without giving reasonable opportunity of hearing to the assessee. He contended that no notice was served at the address given by the assessee in Form No. 35 filed before the ld. CIT(A). An affidavit to this effect was also placed on record.
4. We have considered the rival contentions and carefully gone through the orders of the authorities below. From perusal of the order of the ld. CIT(A), it is clear that he has not decided the issue on merit and had just upheld the order of the A.O. on the plea that the appellate authority cannot substitute its own judgment in place of the judgment of the A.O. unless it is shown that the judgment of the A.O. was biased, irrational, vindictive or capricious . As per provisions of Section 250(6) of the Act, the ld. CIT(A) has to pass order in writing giving reasons for his conclusion. However, the order passed by the ld. CIT(A) are not in terms of provisions of Section 250(6) of the Act. Therefore, in the substantial interest of justice, we set aside the ex parte order of the ld. CIT(A) and restore the matter back to the file of the ld. CIT(A) for deciding the issue afresh after providing reasonable and effective hearing to the assessee. The assessee is also directed to appear before the ld. CIT(A) within a period of two months from the date of receipt of this order. We order accordingly.
5. In the result, appeal of the assessee is allowed for statistical purposes only.
Order pronounced in the open court on 08th April, 2019.
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