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Income Tax Appellate Tribunal, IN THE INCOME TAX APPELLATE TRIBUNAL,
Before: BEFORE SHRI GEORGE MATHANMANISH AGARWAL
Assessee by : None Revenue by : Shri Sanjay Kumar, CIT Sanjay Kumar, CIT DR Date of Hearing : 23/10/20 2024 Date of Pronouncement : 23/10/20 024 O R D E R Per Bench
P a g e 1 | 4 & 392 & 393/CTK/2024 Assessment Years : 2009-10 & 2010-2011
These are appeals filed by the revenue against the separate orders of the ld CIT(A)-2, Bhubaneswar, dated 26.7.2024 in Appeal No. CIT(A), Bhubaneswar-2/10007/2008-09 and CIT(A), Bhubaneswar-2/10026/2009-10 in the case of Shiva Cement Ltd., for the assessment year 2008-09 & 2010- 11 and order dated 26.7.2024 in Appeal No. CIT(A), Bhubaneswar- 2/10010/2008-09 in the case of Shivom Minerals Ltd., for the assessment year 2009-10.
Shri Sanjay Kumar, ld CIT DR appeared for the revenue. None represented on behalf of assessee.
It was submitted by ld CIT DR that the ld CIT(A) has quashed the assessment by holding that there was no incriminating material used in the course of assessment and applied the decision of Hon’ble Supreme Court in the case of Pr. CIT vs. Abhisar Buildwell Pvt Ltd., 454 ITR 212 (SC). It was submitted by ld CIT DR that it was on account of various evidences found in the course of search that the additions had been made by the Assessing Officer. Ld CIT DR drew our attention to page 8 of the assessment order, wherein, the Assessing Officer has also mentioned that the assessee has not complied with the notices issued in the course of assessment. He also drew our attention to para 8 of the assessment order, wherein, the Assessing Officer has recorded that multiple opportunities had been granted but there was no cooperation on the part of the assessee. It was the submission that the ld CIT(A) without even given any opportunity to the P a g e 2 | 4 & 392 & 393/CTK/2024 Assessment Years : 2009-10 & 2010-2011 Assessing Officer has considered the evidences produced by the assessee in the course of appellate proceedings has allowed the appeal of the assessee. It was the submission that if at all a remand report could have been called for from the Assessing Officer. Ld CIT DR further drew our attention to the grounds of appeal filed by the revenue. It was the submission that he had no objection if the issues are restored to the file of the ld CIT(A) for readjudication of the issues after obtaining a remand report from the Assessing Officer.
4. We have considered the submissions of ld CIT DR and perused the orders of lower authorities. A perusal of the assessment order para 8.2 shows that the Assessing Officer has discussed the details of the writ petition order passed by the Hon’ ble Jurisdictional High Court. In the said order as extracted, the Hon’ble High Court has categorically held that in case any plea is raised before the assessing authority and the said authority fails to address their plea, the petitioners would be free to make a grievance before the Appellate Authority. A perusal of the para 8 of the assessment order shows that even though substantial opportunities had been granted to the assessee by the assessing authority, the assessee chose not to cooperate in the assessment proceedings. A perusal of the order of ld CIT(A) shows that in para 6.2.2, ld CIT(A) has held that the addition had been made by the Assessing Officer on the basis of information collected by him from the appellant during the assessment proceedings pertaining to P a g e 3 | 4 & 392 & 393/CTK/2024 Assessment Years : 2009-10 & 2010-2011 investment in the shares of the appellant. This recording of facts by the ld CIT(A) itself is erroneous and insofar as it has already been found that the assessee has been non-cooperative in the assessment proceedings. This being so, the issues in these appeals are restored to the file of the ld CIT(A) for readjudication after obtaining a requisite remand report from the Assessing Officer and after affording reasonable opportunity of hearing to the assessee.
In the result, appeals of the revenue stand partly allowed for statistical purposes.
Order dictated and pronounced in the open court on 23/10/2024. Sd/- sd/- (George Mathan) (Manish Agarwal) JUDICIAL MEMBER ACCOUNTANT MEMBER Cuttack; Dated 23/10/2024 B.K.Parida, SPS (OS) Copy of the Order forwarded to : 1. The Appellant : Asst. Commissioner of Income Tax, Central Circle, Second floor, Ainthapali, Sambalpur 2. The Respondent: Shiva Cement Limited., P- 25, Civil Township, Rourkela 3. The CIT(A)-2, Bhubaneswar 4. Pr.CIT, Sambalpur 5. DR, ITAT, 6. Guard file. //True Copy// By order
Sr.Pvt.Secretary ITAT, Cuttack P a g e 4 | 4