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Income Tax Appellate Tribunal, AGRA BENCH: AGRA
Before: SHRI LALIET KUMAR & DR. MITHA LAL MEENA
ORDER Per LALIET KUMAR, J.M.:
2 467/Agra/2015 & SA No.07/Agra/2018 ITA No.340/Agra/2018:
Thisappeal of assessee is directed against the order of Commissioner of Income Tax (Appeals)-2, Agra, dated 30-03-2018 for the AY.2009-10, raising the following Grounds of Appeal:
“1. Because Ld. Commissioner of Income Tax (Appeals) hereinafter referred to as Ld.CIT(A) grossly erred both in law and on facts in sustaining order passed by the Assessing Officer U/s 144 / 147. Ld CIT(A) failed to appreciate that the order passed by the Assessing Officer is wholly illegal, unjustified and contrary to the established judicial principles.
2. Because the Ld. CIT(A) grossly erred in not providing reasonable and sufficient opportunity and as such the order passed by Ld. CIT(A) is contrary to the judicial principles.
3. Because, on the facts and circumstances, Ld CIT(A) was not legally justified in sustaining the entire addition made by the Assessing Officer. The findings of Ld. CIT(A), ignoring the facts available on records and relying on irrelevant facts are against the principles of natural justice. The addition sustained may kindly be directed to be deleted.
4. Because on the facts and circumstances, the Ld. CIT(A) was legally unjustified in confirming initiation of penalty proceedings by the Assessing Officer.
Because the order is against the law & facts.
6. Because the appellant craves leave to alter/ modify grounds before or at the time of hearing of the appeal”.
At the outset it was submitted by the Ld.AR that the Assessing Officer had issued notices on the address mentioned. However, the notices were allegedly served on the assessee. But none appeared on behalf of the assessee. Thereafter, notices were also issued to Mr.Vishal Gupta charted 3 467/Agra/2015 & SA No.07/Agra/2018 accountant promoter of the assessee at the address given in the income tax return. Thereafter, the Assessing Officer has made an addition of Rs.6,14,21,974/- by invoking the provisions of Section 144 of the Income Tax Act [Act].
2.1. Feeling aggrieved by the order of Assessing Officer, the assessee preferred an appeal before the CIT(A). The CIT(A) after relying upon the report of Securities and Exchange Board of India [SEBI] in the matter of Eco Friendly Food Processing Park Limited, had upheld the addition of Rs.6,14,21,974/-. Para 6.2 of the CIT(A)’s order was to the following effect:
“6.2 During the course of appellate proceeding assessee sought adjournments after adjournments. Assessee was repeatedly asked to explain the nature and source of various credit entries in the bank account that were not filed. Discussion with the assessing officer along with the case records also did not result in any additional information. Since the bank statement showed a pattern of substantial credits and same day withdrawal of amount in lacs of rupees, online search for this company was made. From the information gathered from the net which is available in the public domain, it transpired that the assessee company is funding company and is involved in the rigging of share prices of Eco Friendly Food Processing Park Ltd IPO. It was further seen that the SEBI vide order WTM/RKA/ISD/54/2015 has issued directions under section 11(1), 11(4) and 11B of the Securities and Exchange Board of India Act, 1992 and Section 12A of the Securities Contracts (Regulation) Act, 1956 and while investigating in the matter of dealing in the shares of Eco Friendly Food Processing Park Limited has brought out that Maa Taluka Buildcon (P) Ltd. i.e. the assessee company was used by Eco Friendly Food Processing Park Limited for artificially increasing the prices of its shares from Rs.33/- to Rs.640/- and as funding company. In this connection, in this 4 467/Agra/2015 & SA No.07/Agra/2018 SEBI's order mentioned above, a fund flow in the IPO of Eco Friendly Food Processing Park Limited for the funding companies is given….”
2.2. Ld.AR for the assessee also submitted that the assessee was not given the sufficient opportunity before the Assessing Officer level as well as before the CIT(A) for rebutting its case. Further, it was submitted that the report relied upon by the CIT(A) in the appellate proceedings was not provided to the assessee and moreover, the fate of the said order passed by the SEBI is also not known to the assessee. In the light of the above, it was submitted that as there was violation of Principles of Natural Justice, a reasonable opportunity be granted to the assessee. Hence, Ld.AR requested the Bench it is fair and just if the matter is sent back to the file of CIT(A) for fresh consideration.
Ld.DR has not seriously disputed the contentions of the Ld.Counsel for the assessee.
We have heard the rival contentions and perused the material available on record. In view of the submissions made by the Ld.Counsel for the assessee, we remit the entire issue back to the file of CIT(A) for denovo consideration, with a direction to : 5 467/Agra/2015 & SA No.07/Agra/2018
i) to provide the copies of all the documents/reports as the CIT(A) wishes to rely upon; ii) the opportunity of filing documents/additional documents shall be provided to the assessee in the appellate proceedings; 4.1. In case if the assessee fails to provide documents/evidences in support of its case, then the CIT(A) shall seek the remand report from the Assessing Officer to decide the matter.
4.2. After providing the opportunity to file the documents /evidences, the CIT(A) shall pass a reasoned and speaking order dealing with all the contentions of assessee, while passing the order the the learned Commissioner appeal shall keep in mind the decision of the honourable Supreme Court in the matter of Principal Commissioner of Income Tax (Central)- I v. NRA Iron & Steel Pvt. Ltd., (2019) 412 ITR 161 (SC) decided on 05.03.2019, RDS PROJECT LIMITEDW.P.(C.) No. 11274/19 of Delhi High Court Date of Decision: 23.10.2019. In the light of the above, this appeal of assessee is treated as allowed for statistical purposes.
5. The assessee filed S.A.No.07/Agra/2018 in this appeal. Since we are remitting the matter back to the file of CIT(A) for fresh consideration, the 6 467/Agra/2015 & SA No.07/Agra/2018 Stay Application filed by the assessee becomes infructuous and the same is dismissed.
ITA No.467/Agra/2015:
This appeal is filed by the Revenue, against the order of CIT(Appeals)-Gwalior, 09-06-2015 for the AY.2012-13.
The Ld.DR for the Revenue has submitted that the issue raised in this appeal is identical to the issue raised vide decided by the Tribunal herein above in the earlier paragraphs. Therefore, it would be in the interest of justice that if this entire matter is also remanded back to the file of CIT(A) with a similar direction .
Ld.AR for the assessee had not objected to remand the issue to the file of CIT(A).
In the light of the above, respectfully following the decision of Bench vide decided by the Tribunal herein above in the earlier paragraphs, we also remit this appeal of Revenue to the file of CIT(A) for denovo consideration. Hence, this appeal ofRevenue is treated as allowed for statistical purposes. 7 467/Agra/2015 & SA No.07/Agra/2018
To sum-up, both the appeals of Assessee and Revenue are treated as allowed for statistical purposes and the Stay Application filed by the assessee is treated as dismissed.
Order pronounced in the open court on 10-01-2020