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Income Tax Appellate Tribunal, DELHI BENCH : A : NEW DELHI
Before: SHRI C.M. GARG & SHRI PRADIP KUMAR KEDIA
ORDER
PER C.M. GARG, JM:
This appeal filed by the assessee is directed against the ex parte order dated 16.02.2015 of the CIT(A)-19, New Delhi, relating to Assessment Year 2007-08.
The grounds of appeal
raised by the assessee read as under:- “1. That the Ld. CIT(A) has erred both on facts and in law by passing an ex-party order u/s 144 of the I.T. Act, 1961.
2. That the Ld. CIT(A) has passed the order without giving reasonable opportunity to the assessee of being heard.
3. The CIT(A) has erred in upholding the addition of Rs.20,43,326/- to the Gross Profit made by Ld. A.O. in the impugned assessment order passed U/s 144 of the Income Tax Act,1961.
The appellant reserves to itself, the right to add, alter, amend, substitute and withdraw any Ground(s) of Appeal on or before the date of hearing.
That the above grounds are without prejudice to each other.”
The assessee has also raised the following additional grounds:- 1. That while adjudicating ground no.3 of appeal, the CIT (A) was not justified in directing the A.O. to verify the sales made in subsequent year in respect of addition of Rs.3,56,95,952/- made u/s 68 of the Income Tax Act on account of advances received from 17 parties while simultaneously holding that since the books of accounts had been rejected u/s 145(3) of the Act, therefore, further addition of sundry creditors for the same assessment year appeared to be unwarranted. 1.1 That on the facts and circumstances of the case as per settled proposition of law no separate addition u/s 68 of the Income Tax Act is called for since the books of accounts of the assessee have been rejected and an addition of Rs.20,43,326/- has already been made by the A.O. by enhancing the declared GP rate of 2.51% to 4.64%, as held in the following cases; i) CIT vs. Banwari Lai Bansi Dhar (All.) 229 ITR 229; ii) CIT vs. Agarwal Engineering Co. (Pnh) 302 ITR 246 iii) CIT vs. Bahubali Menninath Muttin Kar 72 taxmann.com 139 and hence, the CIT (A) erred in giving directions to the A.O. to verify the sales made to 17 parties in subsequent years.”
4. The assessee, through the grounds of appeal No.1 and 2 has agitated that the ld.CIT(A) has not provided reasonable opportunity of being heard to the assessee.
The ld. Sr. DR, in all fairness, admitted that the ld.CIT(A) has adjudicated the appeal of the assessee ex parte qua the assessee, and, therefore, the Department has no serious objection if the matter is restored to the file of the AO for fresh adjudication, after allowing due opportunity of being heard to the assessee.
On careful consideration of the above submissions and grounds of appeal taken by the assessee in Form No.36, we are of the considered opinion that the assessee
AO as well as before the ld.CIT(A). Since the ld.CIT(A) has dismissed the appeal ex parte without allowing the assessee adequate opportunity of being heard, the order of the CIT(A) is set aside and the matter is restored to the file of the AO for de novo assessment. The assessee will be at liberty to raise all the issues contained in the legal grounds and grounds on merits before the AO, who would subsequently pass the assessment order afresh, after providing adequate opportunity of being heard to the assessee.
In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on 16.01.2023.