WHITE CLIFF TEA PVT. LTD,KOLKATA vs. DCIT, CIR-4(2), KOLKATA

order : May 15, 2023 आदेश / ORDER संजय गग�, �या�यक सद�य �वारा / Per Sanjay Garg, Judicial Member: The present appeal has been preferred by the assessee against the order dated 14.02.2023 of the National Faceless Appeal Centre (hereinafter referred to as the ‘CIT(A)’) passed u/s 250 of the Income Tax Act (hereinafter referred to as the ‘Act’). 2. The assessee in this appeal has taken the following grounds of appeal: “1. That, the Ld. CIT(A), NFAC grossly erred in law in not having adjudicated upon the appeal filed against the assessment order passed u/s 143(3) of the Act dated 15.12.2017 on the sole ground that only the last page of the assessment order was attached with Form No.35 which was not as per mandatory requirement in spite of the fact that the said inadvertent omission was never pointed out in several notices issued between 02.11.2018 and 27.12.2022 for granting an opportunity to the assessee to rectify the said inadvertent omission and moreover, the Assessment year: 2015-16 White Cliff Tea Pvt. Ltd assessment order appealed against was part of the assessment record before the Ld. C.I.T.(A).

2. That, the Ld. CIT(A) further erred in law in not admitting and thus dismissing the appeal in limini for incomplete attachment when a right of appeal being a creature of the Statute is a substantive right and the gamut of the provisions of sec. 249(4) of the Act in respect of non-admission of the appeal is not applicable to the case of the assessee.

3. That, even on merits of the case, the Ld. A.O. being misconceived erred on facts and in law in alleging discrepancies between the receipts credited in the assessee's audited books of account and reflected in Form 26AS and adding back the sums of Rs.34,34,152/-, Rs.3,523/- and Rs.1,58,410/-, aggregating to Rs.35,96,085, on account of packing charges, rent and interest on bank deposits respectively when in none of the notices issued during the assessment proceeding any query with regard to the above was ever issued and Ld. C.I.T.(A) erred in not adjudicating the said ground. 4 That, on the facts and in the circumstances of the case, the Ld. A.O. erred in law in adding back sums of Rs.1,78,040/- & Rs.88,294/-, aggregating to Rs.2,66,334/-, being interest for late payment of service-tax and provident fund respectively as non-business expenditure and the Ld. CIT(A) erred in not adjudicating this ground in spite of the fact that the said payments were not penal in nature but for withholding the statutory dues and hence allowable as business expenditure.

5. That, as the appellate order of the Ld. C.I.T.(A) passed u/s 250 of the Act dated 14.02.2023 suffers from illegality and the additions sustained in such an invalid order are devoid of any merit, the same should be quashed and your appellant be given such relief(s) as prayed for.”

3. At the outset, the ld. Counsel for the assessee has invited our attention to the impugned order of the ld. CIT(A) to submit that the ld. CIT(A) has dismissed the appeal of the assessee in limine holding that complete assessment order was not attached with the appeal form. The ld. Counsel for the assessee has submitted that the aforesaid defect was a curable defect. However the ld. CIT(A), without giving opportunity to the assessee to furnish complete assessment order, dismissed the appeal of the assessee.

4. We have gone through the impugned order of the CIT(A). We find that the ld. CIT(A) has dismissed the appeal of the assessee in limine on Assessment year: 2015-16 White Cliff Tea Pvt. Ltd the ground that the assessee has not attached the complete assessment order and certain pages of the assessment order were missing. In our view, the inadvertent mistake on the part of the assessee could have been got rectified by the ld. CIT(A) by calling upon the assessee to furnish the complete assessment order. The ld. CIT(A) was not justified in dismissing the appeal in limine. Therefore, we set aside the impugned order of the CIT(A) and restore the matter to the file of the CIT(A) for decision afresh. The assessee will furnish the complete copy of the impugned assessment order before the CIT(A). Needless to say that CIT(A) will give proper opportunity to the assessee to present its case. 4. In the result, the appeal of the assessee is treated as allowed for statistical purposes.