Kamal Kishore Sharma vs ITO

The appeal has been preferred by the Assessee against the order dated 25.11.2009 of CIT(A)-XXVII, New Delhi (hereinafter referred as Ld. First Appellate Authority or in short Ld. ‘FAA’) in appeal no. 130/08-09 arising out of an appeal before it against the order dated 10.12.2008 passed u/s 144/147 of the Income Tax Act, 1961 (hereinafter referred as ‘the Act’) by the ITO, Ward-35(3), New Delhi (hereinafter referred as the Ld. AO).

Heard and perused the record.

Non-appeared for the assessee, the record shows notices were issued to the assessee for today. The same are received back with report that the assessee has left without address. No further opportunity is justifiable. Ld. DR supported findings of Ld. Tax authorities below.

Further, record shows on 24.11.2021, bench had directed Revenue to produce the assessment record to consider the question if mandatory notice u/s 147/148 was served upon the assessee or not. Record is not produced. It was also observed by the Bench on 24.11.2021 that in case record is not produced, adverse view in the matter shall be taken. However, none is present on behalf of the assessee for assistance.

The order of Ld. CIT(A) shows that the question of non-service of mandatory notice was examined by the Ld. CIT(A) as it was mentioned in para no. 4.1 that notice u/s 148 of the Act dated 27.03.2008 was issued and served upon the person on 28.03.2008. The assessee did not appear before Ld. AO and the assessment order was passed u/s 144/147 of the Act. At the same time in para no. 5 of the order ld. CIT(A) mentions that “the reasons recorded for reopening the case for the assessment u/s 147/148 were not provided to the assessee as he did not respond the notice u/s 148 of the Act dated 27.03.2008”. Thus there is no categorical finding of ld. CIT(A) on this issue of no service of mandatory notices. The service of notice u/s 147/148 being question of fact not coming up from the orders of Ld. Tax authorities and as the record is also not made available here inspite of opportunity. It is required to be re-appreciated by Ld. CIT(A) on the basis of examination of record of assessment.

Accordingly, the issue with regard to non-service of mandatory notices for re-assessment is restored to the files of ld. CIT(A). The appeal of Assessee is allowed for statistical purposes.