ACIT, CIRCLE-2(1), HYDERABAD vs. KALEESUWARI REFINERY AND INDUSTRY PVT LTD,(PREVIOUSLY KNOWN AS M/S NATUROL BIOENERGY LTD), HYDERABAD

The appeal filed by the Revenue is barred by limitation by 19 days. The Revenue has moved a condonation petition explaining reasons thereof. We have heard both the parties on this preliminary issue. Having regard to the reasons given in the petition, we condone the delay and admit the appeal for hearing.

Facts of the case, in brief, are that the assessee is a company engaged in the business of manufacturing and sale of bio- diesel, furnished its return of income for A.Y. 2009-10 on 29.09.2009 admitting loss of Rs.89,66,72,824/-. The return was processed u/s 143(1) of the Act. Thereafter, the case was taken up for scrutiny by issuing notices u/s 143(2) on 24.08.2010. Subsequently, notice u/s 142(1) dt.12.10.2021 along with questionnaire was issued to the assessee calling for certain information. In response thereto, assessee had furnished the information as called for and after examining the same, Assessing Officer had completed the assessment u/s 143(3) of the Act dt.21.12.2011 by making certain additions / disallowances.

Feeling aggrieved with the order of Assessing Officer, assessee carried the matter before ld.CIT(A) / NFAC, who allowed the appeal of assessee.

Feeling aggrieved with the order of ld.CIT(A), Revenue is now in appeal before us.

Before us, ld.DR submitted that the ld.CIT(A) admitted the additional evidence filed by the assessee, which was not produced before the Assessing Officer, without giving an opportunity to the Assessing Officer under Rule 46A of the I.T. Rules. Hence, the matter may kindly be remitted back to the learned Assessing Officer for afresh adjudication.

Per contra, the ld. AR of the assessee had vehemently relied upon the order passed by the ld.CIT(A) / NFAC. He further submitted that the order passed by the ld.CIT(A) / NFAC is in accordance with the law.

We have heard the rival submissions and perused the material on record. In the present case, we find that NFAC / ld.CIT(A) had allowed the appeal of assessee based on the additional evidence filed by the assessee i.e., confirmation letter from Avani A. Shah (NRI Investor), which was reproduced at pages 17 and 18 of the order of ld.CIT(A) / NFAC. On perusal of the record, it is clear that the said confirmation letter was not produced by the assessee before the Assessing Officer. The ld.CIT(A) allowed the appeal of assessee based on the said additional evidence and he did not call for the remand report of the Assessing Officer, which is contrary to the provisions of Rule 46A of the Income Tax Rules, 1963. It has not been brought on record about the genuineness, creditworthiness and identity of said NRI investor. Since the order of the ld.CIT(A) was passed without granting the opportunity of hearing to the Assessing Officer, we feel that in the interests of justice, it would be appropriate to remand back the matter to the file of the Assessing Officer with a direction to decide the issue denovo after affording due opportunity of hearing to the assessee. On the date of hearing fix by the AO, the assessee shall file all the documents in support of its case. In case, the assessee failed to file any documents in support of its case, Assessing Officer shall decide the matter in accordance with the law. Accordingly, the appeal of Revenue is allowed for statistical purposes.

In the result, the appeal of Revenue is allowed for statistical purposes.