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Income Tax Appellate Tribunal, MUMBAI BENCH “D” MUMBAI
Before: SHRI OM PRAKASH KANT & SHRI SANDEEP SINGH KARHAIL
This appeal by the assessee is directed against order dated 15.05.2023 passed by the Ld. Commissioner of Income-tax (Appeals) – National Faceless Appeal Centre, Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2007-08, raising following grounds:
1. On the facts and in the circumstances of the case and in law, the Ld. NFAC erred in passing the order u/s 250 of the Act, ex-parte, without appreciating the fact that the appellant had duly made an application seeking adjournment of hearing, which was overlooked by the Ld. NFAC and the impugned order was passed without considering the adjournment request, which is against the principles of natural justice.
Murlimanohar Chetandas Agarwal 2 Murlimanohar Chetandas Agarwal
On the facts and 2. On the facts and in the circumstances of the case and in law the Ld. in the circumstances of the case and in law the Ld. NFAC erred in not considering that the assumption of jurisdiction by NFAC erred in not considering that the assumption of jurisdiction by NFAC erred in not considering that the assumption of jurisdiction by the Ld. Assessing Officer is bad in law as the conditions laid down the Ld. Assessing Officer is bad in law as the conditions laid down the Ld. Assessing Officer is bad in law as the conditions laid down under the Act for initiating reassessment proceeding u/s 147 of th under the Act for initiating reassessment proceeding u/s 147 of th under the Act for initiating reassessment proceeding u/s 147 of the Act have not been fulfilled. Act have not been fulfilled.
3. On the facts and in the circumstances of the case and in law, the 3. On the facts and in the circumstances of the case and in law, the 3. On the facts and in the circumstances of the case and in law, the Ld. NFAC erred in confirming the 100% addition of the Purchases Ld. NFAC erred in confirming the 100% addition of the Purchases Ld. NFAC erred in confirming the 100% addition of the Purchases amounting to Rs. 23,31,177/ amounting to Rs. 23,31,177/- by treating the genuine purchases as by treating the genuine purchases as accommodation entries. accommodation entries. 4. On the facts and in the circumstances of the case and in law, the On the facts and in the circumstances of the case and in law, the On the facts and in the circumstances of the case and in law, the Ld. CIT (A) erred in confirming the addition made by Id. AO, without Ld. CIT (A) erred in confirming the addition made by Id. AO, without Ld. CIT (A) erred in confirming the addition made by Id. AO, without providing any opportunity of cross examination, without any providing any opportunity of cross examination, without any providing any opportunity of cross examination, without any corroborative evidence and without providing copy of statemen corroborative evidence and without providing copy of statemen corroborative evidence and without providing copy of statements relied upon. 2. We have heard rival submission of the parties on the issue in We have heard rival submission of the parties on the issue in We have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. The Ld. dispute and perused the relevant material on record. The Ld. dispute and perused the relevant material on record. The Ld. Counsel for the assessee submitted that though the assessee filed the assessee submitted that though the assessee filed the assessee submitted that though the assessee filed all the relevant details before the Ld. CIT( all the relevant details before the Ld. CIT(A) but the Ld. CIT(A) has A) but the Ld. CIT(A) has passed the order ex-parte without deciding the appeal on merit. We parte without deciding the appeal on merit. We parte without deciding the appeal on merit. We find that the Ld. CIT(A) find that the Ld. CIT(A) in para 2 of the impugned order in para 2 of the impugned order has mentioned non compliance of various notices issued non compliance of various notices issued non compliance of various notices issued and passed the impugned order invoking the decisio order invoking the decision of the Co- -ordinate Bench of the Tribunal in the case of CIT v. Multiplan India Pvt. Ltd. of the Tribunal in the case of CIT v. Multiplan India Pvt. Ltd. of the Tribunal in the case of CIT v. Multiplan India Pvt. Ltd. reported in 38 ITD 320 (Delhi). The relevant finding of the Ld. CIT(A) reported in 38 ITD 320 (Delhi). The relevant finding of the Ld. CIT(A) reported in 38 ITD 320 (Delhi). The relevant finding of the Ld. CIT(A) is reproduced as under: is reproduced as under:
“4.2 The Delhi Tribunal in CIT Vs. Multiplan India Pvt. Ltd. as The Delhi Tribunal in CIT Vs. Multiplan India Pvt. Ltd. as reported The Delhi Tribunal in CIT Vs. Multiplan India Pvt. Ltd. as in 38 ITD 320 (Delhi) when faced with a similar situation of non in 38 ITD 320 (Delhi) when faced with a similar situation of non in 38 ITD 320 (Delhi) when faced with a similar situation of non- prosecution of appeal, dismissed the appeal of revenue. prosecution of appeal, dismissed the appeal of revenue. 4.3 Reliance is also placed in the case of Vipul Logistic & Warehousing 4.3 Reliance is also placed in the case of Vipul Logistic & Warehousing 4.3 Reliance is also placed in the case of Vipul Logistic & Warehousing (P) Ltd Vs. ITO, wherein the Hon'ble Delhi ITAT has co (P) Ltd Vs. ITO, wherein the Hon'ble Delhi ITAT has confirmed even the nfirmed even the order of CIT(A) who dismissed the appeal of the taxpayer when there order of CIT(A) who dismissed the appeal of the taxpayer when there order of CIT(A) who dismissed the appeal of the taxpayer when there was no response to the notices issued. The observations and decision was no response to the notices issued. The observations and decision was no response to the notices issued. The observations and decision of the Hon'ble ITAT are as under: of the Hon'ble ITAT are as under:
Murlimanohar Chetandas Agarwal 3 Murlimanohar Chetandas Agarwal
"We have heard rival submissions and have gone through the "We have heard rival submissions and have gone through the "We have heard rival submissions and have gone through the entire ma entire material available on record. In the grounds filed before terial available on record. In the grounds filed before us, assessee has not raised any such ground about the us, assessee has not raised any such ground about the us, assessee has not raised any such ground about the assessment being time barred. Therefore, since the plea raised assessment being time barred. Therefore, since the plea raised assessment being time barred. Therefore, since the plea raised by the assessee does not arise out of its grounds of appeal, the by the assessee does not arise out of its grounds of appeal, the by the assessee does not arise out of its grounds of appeal, the same is dismissed. same is dismissed. We see no infirmity on the order of CIT(A) We see no infirmity on the order of CIT(A) which is passed ex which is passed ex-parte due to deliberate non-cooperation of cooperation of the assessee. Therefore, the assessee's appeal is dismissed." the assessee. Therefore, the assessee's appeal is dismissed." the assessee. Therefore, the assessee's appeal is dismissed." 4.4 In view of these facts, I am of the opinion that no interference is 4.4 In view of these facts, I am of the opinion that no interference is 4.4 In view of these facts, I am of the opinion that no interference is called for in th called for in the AO's order and therefore, the grounds of appeal are e AO's order and therefore, the grounds of appeal are dismissed.” 2.1 We find that under the provisions of section 250(6) of the We find that under the provisions of section 250(6) of the We find that under the provisions of section 250(6) of the Income-tax Act, 1961 (in short ‘the Act’), the Ld. CIT(A) is required tax Act, 1961 (in short ‘the Act’), the Ld. CIT(A) is required tax Act, 1961 (in short ‘the Act’), the Ld. CIT(A) is required to decide the grounds raised by the assessee and pass a reasoned to decide the grounds raised by the assessee and pass a r to decide the grounds raised by the assessee and pass a r order even in absence of any representation by the assessee. Since, order even in absence of any representation by the assessee. Since, order even in absence of any representation by the assessee. Since, in the instant case, the Ld. CIT(A) has not decided the issue in in the instant case, the Ld. CIT(A) has not decided the issue in in the instant case, the Ld. CIT(A) has not decided the issue in dispute on merit and therefore, we feel it appropriate to set aside dispute on merit and therefore, we feel it appropriate to set aside dispute on merit and therefore, we feel it appropriate to set aside the order of the Ld. CIT(A) and restore the mat the order of the Ld. CIT(A) and restore the matter back to him for ter back to him for deciding afresh after taking into consideration submission of the deciding afresh after taking into consideration submission of the deciding afresh after taking into consideration submission of the assessee. The grounds of appeal of the assessee are accordingly assessee. The grounds of appeal of the assessee are accordingly assessee. The grounds of appeal of the assessee are accordingly allowed for statistical purposes. allowed for statistical purposes.
In the result, the appeal filed by the assessee is allowed for In the result, the appeal filed by the assessee is allowed for In the result, the appeal filed by the assessee is allowed for statistical purposes.
Order pronounced in the open Court on nounced in the open Court on 25/10/2023. /10/2023.