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Income Tax Appellate Tribunal, AGRA BENCH: AGRA
Before: SHRI LALIET KUMAR,AND DR. MITHA LAL MEENA
Per LALIET KUMAR, J.M.:
This appeal arising out of the order passed by the CIT(A) on 29.12.2017 of A.Y. 2014-15. The assessee has raised the following grounds which read as under:
“1. BECAUSE, upon due consideration of facts and in law the Ld. CIT(A) was not justified in disposing off the appeal without allowing sufficient opportunity of hearing and without adjudicating the merits of the case.
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BECAUSE, even after observing in the appellate order that the appeal has been taken up for decision on merits but the Ld. CIT(A) has not considered the past history and submissions as was furnished before the AO which form part of records.
(a) BECAUSE, upon due consideration of facts and in overall circumstances of the case the authorities below were not justified in making and sustaining ad-hoc disallowance, @10% of Rs. 28,16,768/-in respect of 'Purchase of Material', Labour Expenses, Repair & Maintenance and Establishment, Selling and Administrative Expenses without pin-pointing as to which particular expenses thought debited in accounts is not supported by bill/voucher.
(b) BECAUSE, the disallowance is made on wrong assumption of facts contrary to law and principles of natural justice and in any view of tire matter deserves to be quashed.
BECAUSE, upon due consideration of facts and in the overall circumstances of the case the AO was highly unjustified in making ad-hoc disallowance @ of 20% aggregating to aggregating to Rs.10,54,363/- under the head ‘Sundry Debtors & Creditors’. Because while making the assessment ‘AO’ made various 5. observations /conclusions which are contrary to facts available on records. While making the addition submission made and evidences filed have been rejected arbitrarily.
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BECAUSE, the 'appellant' denies levy of interest under section 234B.”
Briefly stated the relevant facts of this appeal are as under:
That the assessee is carried out the business during the assessment proceedings the assessee was called upon to produce the books of account and vouchers for verification by AO after giving the notice u/s 143(2)/142(1) of the Act. Further the assessee was also directed to produce the bank reconciliation statement giving details of transaction and the TDS certificate issued by the contractees and the payment receipt from them. The assessee, as per case of the assessee complied with the notice issued by the AO however, the AO was not convinced with the evidence/document issued by the assessee and accordingly made the addition of Rs.28,16,768/- at the paragraph 8 of the assessment order and Rs.9,53,000/- as per paragraph 8.1 of the assessment order and Rs.10,54,363/- as per paragraph 8.2 of assessment order.
Feeling aggrieved by the assessee, the assessee preferred an appeal on various grounds before the Commissioner, the assessee had submitted various written submissions and documents however, when the case was fixed for hearing 21.09.2017, 16.11.2017 and thereafter on 30.11.2017, on the said date the ld. AR for the assessee had appeared before the Commissioner and sought the
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adjournment on 15.12.2017 however, on 15.12.2017 neither the assessee nor the
AR appeared before the CIT(A) and accordingly the ld. CIT(A) has decided the
issues on the basis of material available on record. It was submitted by the ld. AR
that the absence of the ld. AR on the date of hearing was on account of justifiable
reasons which prevented the assessee to appear before the Commissioner. It was
also submitted that the commissioner while passing the order had ignored the
written submissions/document placed on record and the order of Commissioner
was contrary to material available on record.
On the other hand, the ld. DR had submitted that the assessee/AR has not
appeared before the lower Authorities deliberately, which was so recorded by the
Commissioner in his order and further it was submitted that while passing the
order, the ld. CIT(A) had also considered the merits of the case and pass the
reasoned order.
We have heard the rival contention and perused the material on record. It
was the case of the ld. AR before us that on the date of hearing on 15.12.2017, the
assessee/AR was in the process of preparation for which certain facts were
required to be verified from the assessee. It was also the case that on account of
bona fide belief that the office of the AR shall apply for the adjournment and
accordingly next date of hearing would be granted by the ld. CIT(A). We found
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that the assessee, had defaulted in appearance before the CIT(A) on the date in
time granted by the Commissioner. Considering the totality of circumstances and
facts more particularly, when assessment proceedings is not adversarial and the
sole object of assessment proceeding is to find out the taxable income of the
assessee, in the right hand. The correct determination of taxable income is not
possible without the assistance and co-operation of the assessee. In the present case
despite opportunities granted by the lower Authority neither the assessee nor the
AR had appeared and as such the lower Authority had decided the matter on the
basis of the material available on record.
Before us, it was submitted that assessee/AR were under confusion and
under wrong impression that office of the AR would take the adjournment in the
matter and next date would be given by the lower Authority. In our view, the
absence of the AR on the date of hearing was on account of the above said reasons.
Nonetheless, it is the settled position law that the litigant should not suffer on
account of lapses of AR/counsel, keeping in mind this proposition of law in mind ,
order of ld. CIT(A) is set aside and the appeal is remanded back to the file of the
CIT(A), with direction to decide the appeal within a period of six months from the
date of decision of this order. It is made clear that assessee/AR they shall appear
before the CIT(A) as and when the called upon by the CIT(A) and shall nottake
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undue adjournment without any justifiable reason. It is also expected from the
CIT(A), that he shall grant opportunity of hearing and grant sufficient time to file
the document/evidence to the assessee as may be advised to him in support of his
case. In the light of the above the appeal of the assessee is allowed for statistical
purposes.
Order pronounced in the open court on 19th /06/2019.
Sd/- Sd/- (Dr. M.L. MEENA) (LALIET KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKV* Copy forwarded to: 1. Assessee 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT AGRA