What did the Tribunal hold?

The Tribunal found that the CIT(A) passed an ex-parte order despite the assessee seeking an adjournment. Therefore, in the interest of natural justice, the matter was restored back to the CIT(A) for a fresh decision.

The assessee's appeal was filed against an ex-parte order passed by the CIT(A) without deciding the issues on merits. The assessee had sought an adjournment which was not considered by the CIT(A) before passing the order.

What were the issues?

Whether the CIT(A) erred in passing an ex-parte order without considering the assessee's adjournment request and deciding the issues on merits.

Ganeshram Chaudhary vs ITO | ITAT Mumbai 2023

Income Tax Appellate Tribunal, ‘SMC‘

For Appellant: Shri Bharat Kumar

For Respondent: Ms. Kakoli Ghosh

Hearing: 31/07/2023Pronounced: 31/07/2023

आदेश / O R D E R PER AMIT SHUKLA (J.M):

The aforesaid appeal has been filed by the assessee against the order dated 16/03/2023 passed by NFAC, Delhi for the quantum of assessment passed u/s.143(3) for the A.Y.2014-15.

In the grounds of appeal assessee has raised the following grounds:-

1. “The learned CIT (A) has erred in law and in facts in not holding that the order u/ s. 143(3) of the Act passed by the AO is bad in law, Illegal and null and void.

2. The learned CIT (A) has erred in law and in facts in not holding that the in fact in passing the assessment order in gross violation of principles of natural justice 3. The learned CIT (A) has erred in law and in facts in not holding that assessing the Total Income of the appellant at Rs. 30,16,390/- as against the Total Income of Rs. 4,47,370/- declared in the Return of Income. The learned CIT (A) has erred in law and in facts in upholding the addition of an amount of Rs. 7,60,507/- being the amount borrowed by the appellant and disallowing interest of Rs.8,400/-of the said loan. Further the learned CIT (A) has erred in law and in facts in upholding the above addition by applying the provision of Section 68 of the Act. 5. The learned CIT (A) has erred in law and in facts in upholding the addition of an amount of Rs. 5,43,202/- being the purchase from R.D. Sales Corporation on plea that the appellants name dose not exists in the audited financials of the supplier. Further the learned CIT (A) has erred in law and in facts in upholding the above addition by considering bogus purchase and added to the total income of the appellants under the head business income. 6. The learned CIT (A) has erred in law and in facts in upholding the addition of an amount of Rs. 12,56,913/-being the purchase from from Allit Metal & tubes and not affording another opportunity to appellant to produce their address on the fact and in the circumstances of the case he ought not have completed the assessment hastily. Further the learned CIT (A) has erred in law and in facts in upholding the the above addition by considering bogus purchase and added to the total income of the appellants under the head business income 7. The learned CIT(A) has erred in law and in facts in not holding that the AO erred in passing the assessment order in gross violation of principles of natural justice.

3 Shri Ganeshram Chaudhary 3. Before us, ld. Counsel submitted that ld. CIT(A) has passed exparte order without deciding the issue on merits. He submitted that last date of hearing was fixed for 15/03/2023. Assessee had filed adjournment application before the ld. CIT(A) which is evident from the screenshot of ITB portal. Assessee had uploaded the adjournment request for gathering of material and adjournment was sought upto 30/03/2023, however, the ld. CIT(A) has passed an order on 16/03/2023. Accordingly, he requested that matter should be restored back to the file of the ld. AO to decided afresh.

On the other hand, ld. DR submitted that though various opportunities were given to the assessee prior to this date also however, since ld. CIT(A) has not decided the issue on merits, therefore, matter can be restored back to the file of First Appellate Authority.

After considering the facts placed on record, we find that the ld. AO had made addition on account of loan received and also disallowance of interest on such loan and also made addition on account of purchases to the tune of Rs.12,56,913/- and has disallowed the entire purchases. Since when the ld. CIT(A) has passed an exparte order when assessee had sought an adjournment but the same has not been taken into cognizance by the ld. CIT(A. Accordingly, in the interest of natural justice, the matter is restored back to the file of the ld. CIT(A) to decide the issue afresh in accordance with law after giving due opportunity of hearing to the assessee.

In the result, appeal of the assessee is allowed.

Order pronounced on 31st July, 2023.

GANESHRAM CHAUDHARY,MUMBAI vs. ITO, 20(1)(2), MUMBAI

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