PALLAB SAHA,COOCH BEHAR vs. I.T.O., WARD - 2(1), KOLKATA

For that on the facts and in the circumstances of the case, Ld. CIT(A) was not justified in dismissing the appeal of the assessee by passing an exparte order.

For that on the facts and in the circumstances of the case, the Ld. CIT(A) erred in confirming the disallowance of commission expenses amounting to Rs.46,41,792/- by invoking the provision of section 37 of the Act.

For that on the facts and in the circumstances of the case, the Ld. CIT(A) erred in confirming the addition of Rs. 63,99,233/- being GST and Service Tax amount collected by wrongly treating the same as suppressed sales.

That the appellant craves leave to add, alter or delete all or any of the grounds of appeal."

Brief facts of the case are that the assessee had filed the return of income for the AY 2018-19 on 31.10.2018 declaring the total income at ₹6,42,430/-. The assessee is engaged in the business of trading and resale of mobile cashcard, Lapusim card and mobile talk time recharge etc. under the tradename of M/s M.R. Trading & Co. During the assessment proceedings, the Assessing Officer (hereinafter referred to as Ld. 'AO') noted that the assessee had disclosed sales of ₹5,48,98,360/- in the return of income but the total sales of ₹6,12,97,593.16/- was worked out after including the amount collected on account of GST and Service Tax, leading to an addition of ₹63,99,233.16/- u/s 28 of the Act as the assessee failed to furnish GST returns or payment evidence for the claimed tax collected. The Ld. AO also made a disallowance of ₹46,41,792/- u/s 37 of the Act towards commission expenses claimed, as the assessee had admitted that he did not incur these expenses and failed to establish their genuineness. Consequently, the Ld. AO assessed the total income of the assessee at ₹1,16,83,455.16/- u/s 143(3) r.w.s. 143(3A) and 143(3B) of the Act. Aggrieved with the assessment order, the assessee filed an appeal before the Ld. CIT(A), who upheld the addition of ₹63,99,233.16/- on account of suppressed sales and confirmed the disallowance of ₹46,41,792/- for commission expenses, and also noted the assessee's failure to discharge the burden of proof and substantiate the claims with credible evidence. Accordingly, the Ld. CIT(A) confirmed the action of the Ld. AO and dismissed the appeal of the assessee.

Aggrieved with the order of the Ld. CIT(A), the assessee has filed the appeal before the Tribunal.

Rival contentions were heard and the submissions made have been examined. The Ld. AR submitted that the Ld. CIT(A) has passed an ex parte order in appeal.

The Ld. DR relied upon the order of the Ld. CIT(A) and requested that the same may be confirmed.

A perusal of the order of the Ld. CIT(A) shows that notices for hearing, the appeal were issued to the assessee from 28 September 2023 till 12/03/2026 but there was no response from the assessee nor any reply was filed. The appeal was decided on the basis of Form No. 35, the grounds of appeal, the assessment order, the submission as per grounds filed by the assessee during the appellate proceedings (which are mentioned as not filed) and the appeal was dismissed. The Ld. AR stated that proper representation could not be made before the Ld. AO as well as before the Ld. CIT(A) and requested for one more opportunity of being heard so that proper reply could be filed. The Ld. DR relied upon the order of the Ld. CIT(A) and requested that the same may be upheld as the assessee had failed to avail the several opportunities of being heard provided by the appellate authority.

We have considered the submissions made, gone through the facts of the case and perused the record and the order of the Ld. CIT(A). Since there was no proper compliance before both the Ld. AO as well as before the Ld. CIT(A), in the interest of justice and fair play it was considered by the Bench that one more opportunity of being heard may be provided. Hence, after examining the facts of the case, we deem it ITA No(s). 1375/KOL/2026 Assessment Year(s) 2018-19 Pallab Saha. appropriate to set aside the order of the Ld. CIT(A) and remand the matter before the Ld. AO for making the reassessment de novo. Needless to say, the assessee shall be given a reasonable opportunity of being heard to make any further submission he wants to make in support of the relief claimed and shall not seek unnecessary adjournments. Accordingly, the grounds taken by the assessee in this appeal are partly allowed for statistical purposes.

In the result, the appeal filed by the assessee is partly allowed for statistical purposes. Order pronounced in the open Court on 21st July, 2026. [Yogesh Kumar US] [Rakesh Mishra] Judicial Member Accountant Member Dated: 21.07.2026 Bidhan (Sr. P.S.)

CIT-

CIT(DR), Kolkata Benches, Kolkata.

Guard File. //// By order