2017 (7) TMI 1283 - AT - Income Tax

Condonation of delay - Ex-parte assessment - notice of hearing was not served upon the assessee - non speaking order - in absence of any specific prayer, the CIT(A) has dismissed ground No. 1 as a general ground - HELD THAT - Argument on the basis of which the order was claimed to be bad in law is found extracted in the order and has been reproduced in the earlier part of this order. The said argument has been addressed though for explaining the delay in filing of the appeal. I find that the finding of the CIT(A) that it was a general ground, cannot be faulted with. Since the assessee seeks to assail the jurisdiction of the AO itself by way of facts available on record,find that in the peculiar facts and circumstances, it would be appropriate to set aside the issue back to the file of the CIT(A) with a direction to pass a speaking order in accordance with law requiring the assessee first to raise specific objection to the jurisdiction of the AO and only thereafter the assessee can pray for a decision on merits, if need be. Said order was pronounced after hearing the submissions of the parties before the Bench. The jurisdictional ground being the foundational ground can be assailed at any stage, specially where the facts are already available on record as per settled legal position thereof. - Decided in favour of assessee for statistical purposes.

Summary

Issues:
Assessment order validity due to non-service of notices.

Analysis:
The appeal was filed challenging the correctness of the CIT(A)'s order regarding the 2009-10 assessment year. The appellant contended that the CIT(A) erred in upholding the ex-parte assessment as the notice of hearing dated 09.12.2011 for 14.12.2011 was not served upon the assessee. The appellant highlighted that the notice and show cause notice under section 271(1)(h) were not served due to the assessee shifting residence. The ex-parte assessment order was also allegedly not served upon the assessee but on another individual. The CIT(A) reproduced these submissions but failed to address the specific ground raised by the appellant.

Upon review, the Tribunal found that the CIT(A) dismissed the ground as a general one, considering it for condoning the delay of 1355 days without a specific prayer. The Tribunal acknowledged that the appellant sought to challenge the jurisdiction of the Assessing Officer based on the available facts. It was deemed appropriate to remand the issue back to the CIT(A) with a direction to pass a speaking order requiring the assessee to first raise specific objections to the jurisdiction of the AO before seeking a decision on merits. The Tribunal emphasized that the foundational jurisdictional ground can be challenged at any stage, especially when the facts are already on record.

Ultimately, the appeal of the assessee was allowed for statistical purposes, and the order was pronounced in the Open Court on 13th July 2017.