In Case issue involved is identical and facts are similar than the order can be setaside and restore the case in the file of the AO

IN THE INCOME TAX APPELLATE TRIBUNAL

(DELHI BENCH `D’: NEW DELHI)

BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER AND

SHRI B.C. MEENA, ACCOUNTANT MEMBER

ITA No.4492/Del./2011

(Assessment Year: 2003-04)

Kirtiman Developers Pvt. Ltd.

 B-324, Lok Vihar,

 New Delhi.

Pitampura,

 (PAN/GIR No.AAACK6020F)

(Appellant)

Vs.

ITO, Ward 5(3),

New Delhi.

(Respondent)

Assessee by: Shri Ved Jain & Rano Jain, CA

Revenue by: Mrs. Y. Kakkar, Sr.DR

ORDER

PER U.B.S. BEDI, J.M.

This appeal of the assessee is directed against the combined order passed by CIT (A)-VIII, New Delhi dated 10.08.2011, for the assessment years 2002-03 & 03-04, whereas present appeal concerns assessment year 2003-04.

2. At the very outset, Ld.Counsel for the assessee, Shri Ved Jain, CA along Mrs. Rano Jain, CA, submitted that first appellate authority has passed combined order for the assessment years 2002-03 & 03-04 and with respect to the appeal of the assessee for assessment year 2002-03 in I.T.A. No.4288/Del./2011 was remitted the matter back on the file of the CIT(A) vide order dated 31.1.2012 by this bench vide paras.2 to 5. Since the matter has been remitted back for the earlier year and facts and circumstances of the case in hand and decided by the Tribunal are similar and issue is identical, therefore, the order of CIT(A) for the year under consideration should also be set aside and matter be remitted back to the file of the CIT(A) for re-deciding the appeal afresh in line with the direction passed in earlier decision dated 31.1.2012.

3. Ld.DR could not controvert this factual aspect and rather submitted that appeal can be decided as per law.

4. We have heard both the sides, considered the material on record and find that similar issue arose before this bench in assessee’s own case for assessment year 2002-03 when a combined order for assessment years 2002-03 & 03-04 was passed by the CIT(A), who dismissed the appeal by not condoning the delay and this bench concluded this issue as per paras.2 to 5 of its order which are reproduced as under:

“2. At the time of hearing, the learned AR submitted that the assessee company has not received assessment order passed by the Assessing Officer u/s 148 r/w section 143(3) for the assessment year 2002-03 as stated by the Assessing Officer that the order was dispatched by speed post on 31st December, 2009. The company received notice u/s 220(1)(i) of the Act for the outstanding payment and thereafter the assessee informed the Assessing Officer that he has not received the order and requested for certified copy. In these circumstances, the company was under the bona fide belief that the appeal filed by the assessee is in time and there is no need for any condo nation of delay. He also submitted that the reasons for not receiving the order which was dispatched on 31.12.2009 probably on account of dispatching the order at the address B-193, Lok Vihar, Pitampura, Delhi while the address at the time was B-324 Lok Vihar, Pitampura, Delhi-110 034. These facts also clear from the notices issued u/s 156 which is placed at page no.1 of the paper book and penalty notice placed at page 3 of the paper book. He requested to set aside the issue to the file of the CIT(A) to decide afresh including the issue related to delay in filing the appeal.

3. Learned DR was also not having any objection to this proposition.

4. After hearing both the sides and in the interest of justice and equity, we restore the issue to the file of the CIT(A) with a direction to decide afresh after hearing the assessee as well as after providing an opportunity of hearing to the Assessing Officer.

5. In the result, the appeal of the assessee is allowed for statistical purposes.”

5. Since issue involved is identical and facts are similar. Therefore, we set aside the order of CIT(A) and restore the matter back on his file with the direction to re-decide the appeal in line with the direction issued by the Tribunal in its earlier order.

4. As a result, the appeal of the assessee gets accepted for statistical purpose. Order pronounced in open court soon after the conclusion of the hearing on 16.02.2012.

                                                          Sd/-                                           Sd/-

                                                 (B.C. MEENA)                        (U.B.S. BEDI)

                                       ACCOUNTANT MEMBER        JUDICIAL MEMBER

Dated: February 16, 2012

SKB

Copy of the order forwarded to:-

1. Appellant

2. Respondent

3. CIT

4. CIT(A)-VIII, New Delhi.

5. CIT(ITAT)                                                                                        Deputy Registrar, ITAT