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Income Tax Appellate Tribunal, DELHI BENCH “H” NEW DELHI
Before: SHRI CHALLA NAGENDRA PRASAD & Dr. B.R.R. KUMAR
आदेश / O R D E R PER C. N. PRASAD, J.M.
This appeal is filed by the assessee against the order of the Ld. Commissioner of Income Tax (Appeals) [hereinafter referred 1 to CIT (Appeals)] Faridabad, dated 22.01.2020 for the Assessment Year 2011-12.
The assessee has raised the following substantive grounds of appeal:-
“1. That the ex-parte order passed by CIT(A), Faridabad confirming the disallowance made in assessment order passed by A.O is unlawful and erroneous.
2. That the Learned CIT(A), Faridabad has grossly erred both on facts and on the circumstances of the case by upholding the Order of Ld A.O for asking disallowance of Rs 50,00,000/- as he has not given the proper opportunity to be heard to the Appellant Company by passing an ex-parte order. The Ld. CIT(A) acted arbitrarily in a hurriedly manner and has not acted as per the Principles of Natural Justice to provide the justice to the Appellant Company.
3. That the Ld. CIT(A), Faridabad had grossly erred both on facts and circumstances of the case and in law in confirming the assessment order passed by Ld AO for disallowing Rs.50,00,000(Fifty Lac only) paid during the financial year 2010-11 by the Appellant Company to Shubh Propbuild Pvt. Ltd. as business advance but the same was received back by Appellant Company from Shubh Propbuild Pvt. Ltd. during the same financial year that is F. Y.20 10-11.
4. That the disallowance confirmed by Ld CIT (A) is totally wrong, and unjustified as the assessment order was based on assumptions surmises, conjectures and suspicion which cannot be the basis of passing an Assessment. It can be clearly seen from the Assessment Order that allegation and observations made by Ld. AO are based only on suspicion and assumption. It is a trite law that suspicion however strong cannot take the place of evidence. The Appellent Company had given a business advance of Rs.50,00,000 to Shubh Propbuild Pvt. Ltd. on dated I-I1-2010 towards aggregation of land and it has received back the same on dated 28-03- 2011 as the job was not done. Therefore, the advance got squared -up during the year. There is no loss to the 2 government revenue on this account as the Assessee Company had given the advance to Shubh Propbuild Pvt. Ltd. out of its genuine sources and it has received back the same from Shubh Propbuild Pvt. Ltd. within a short period of around 4 months only. Hence this amount was never booked as expenditure in the Profit and Loss Account. We have submitted Copy of Ledger account of Shubh Propbuild Pvt. Ltd. as per books of Appellant Company along with relevant extract of the bank statement. Hence the addition made by Ld. AO only on the basis of suspicion is arbitrary and needs to be deleted.”
The ld. Counsel for the assessee at the outset submits that the ld. CIT (Appeals) passed ex-parte order dismissing the appeal of the assessee. The ld. Counsel submits that the notices have not been received by the assessee and, therefore, could not attend the proceedings. The ld. Counsel for the assessee, therefore, submits that an priority may be given to the assessee to present its case before the ld. CIT (Appeals).
On hearing both the parties and perusing the order of the ld. CIT (Appeals) we observe that the ld. CIT (Appeals) posted the appeal for hearing on 17.10.2019, 18.11.2019 and 6.01.2020. The ld. CIT (Appeals) stated that the notices were issued through e-mail and Speed Post and the assessee has not attended. It is not clear from the order of the ld. CIT (Appeals) whether the notices sent were served on the assessee. The ld. Counsel for the assessee undertakes to appear before the ld. CIT (Appeals) after the appeal is fixed for hearing. Taking the totality of facts and circumstances into consideration we restore this appeal to the file of the ld. CIT (Appeals) who shall adjudicate the issue on merits after providing adequate opportunity of being heard to the assessee. Grounds raised
by the assessee are allowed for statistical purposes.
5. In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on : 24/02/2023 Sd/- Sd/- ( B.R.R. KUMAR ) ( C. N. PRASAD ) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated : 24/02/2023 *MEHTA* Copy forwarded to :
1. Appellant; 2. Respondent; 3. CIT 4. CIT (Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, New Delhi.
20.02.2023 Date of dictation Date on which the typed draft is placed before the dictating 21.02.2023 member Date on which the typed draft is placed before the other 24.02.2023 member Date on which the approved draft comes to the Sr. PS/ PS 24.02.2023 4