DODHIA CHEM TEX PRIVATE LIMITED,BHIWANDI vs. DCIT-CC-3, THANE, THANE

On the facts and in the circumstances of the appellant company's case and in law, the Ld. Commissioner of Income Tax (Appeals) erred in setting aside the assessment order to the office of the Ld. Assessing Officer and not deleting the additions made in the impugned assessment order ignoring the fact that the books of accounts of the appellant company are duly audited.

On the facts and in the circumstances of the appellant company's case and in law, the Ld. Commissioner of Income Tax (Appeals) erred in setting aside the assessment order to the office of the Ld. Assessing Officer and not giving decision on merits by deleting the additions made in the impugned assessment order,

On the facts and in the circumstances of the appellant company's case and in law, the 1.4. Commissioner of Income Tax (Appeals) erred in setting aside the assessment order to the office of the Ld. Assessing Officer, which was never prayed in the appeal filed in Farm 35 before the Ld. Commissioner of Income Tax (Appeals) and reasonable cause existed for non-compliance before the Assessing Officer.

The appellant craves leave to add to, alter, amend, modify and for delete all or any of the foregoing grounds of appeal.

The brief facts of the case are that the assessment was completed ex parte, resulting in the disallowance of expenses amounting to Rs.3,05,10,742/-, disallowance of provision for gratuity amounting to Rs.4,28,412/-, and disallowance of payment towards the Provident Fund amounting to Rs.46,176/-. Aggrieved by the assessment order, the assessee filed an appeal before the Ld. CIT(A). Considering the assessee’s submissions and noting that the assessment was completed ex parte under Section 144 of the Act, the Ld. CIT(A) set aside the matter to the file of the Ld. AO for fresh adjudication de novo.Dissatisfied with the appellate order, the assessee has preferred the present appeal before us. 3. We heard the rival submissions and considered the documents available in the record. We find that the assessment was completed exparte under section 144 and additions were made by making disallowances under different heads. After the amendment to section 251(1)(a) of the Act, the Ld.CIT(A) is empowered to set aside the assessment order for further adjudication to the Ld. AO. The observations of the Ld.CIT(A) at para 5.7 are as follows:- “Findings 5. I have perused the facts of the case. In this case, noticesu/s 142(1) were issued on 05/09/2022 and 04/12/2022. Thereafter, the AO issued a show-cause on 10/12/2022 asking the appellant to file explanation by 13.12.2022. Thus, only 4 days were provided for filing reply. In response to this, the appellant filed an adjournment request dated 13.12.2022. However, the AO proceeded to pass the assessment order u/s 144 of the Act without rejecting the said adjournment request. The appellant has 4 Dodhia Chem Tex Private Limited further submitted that the requisite details could have been filed before the AO, had he provided adequate opportunities. The facts of the case suggests that the AO did not provide adequate opportunities to the appellant especially because only a time of 4 days was given to respond the show- cause notice and an adjournment request was specifically filed vide letter dated 13.12.2022. Further, the AR of the appellant has stated that if a proper opportunity is given, the appellant can file necessary documents and evidences on the issues involved in the appeal.In view of these facts and the proviso to section 251(1)(a) of the Act, the impugned assessment order u/s. 144 of the Act is being set-aside and the matter is referred back to the AO for making a fresh assessment after giving adequate opportunity to the appellant for furnishing explanation. 6. Since the assessment order is being set aside as per the proviso to section 251(1)(a) of the Act, the other grounds of appeal raised by the appellant are not required to be adjudicated. 7. The appeal is ALLOWED for statistical purposes.” 4. The Ld. DR fully relied on the order of the Ld. CIT(A). 5. Upon careful consideration, we find that the impugned assessment was completed ex parte, and in view of the assessee’s submissions, the Ld. CIT(A) correctly set aside the matter to the file of the Ld. AO for fresh adjudication de novo by an order dated 26/12/2024.Furthermore, the Ld. CIT(A) is vested with the authority to remand the matter under Section 251(1)(a) of the Act, as amended by the Finance (No.2) Act, 2024, effective from 01.10.2024. The relevant statutory provision reads as follows: “251. (1) In disposing of an appeal, the 7[***] 9[Commissioner (Appeals)] shall have the following powers— (a) in an appeal against an order of assessment, he may confirm, reduce, enhance or 11annul the assessment 12[***]:

अपील र्थी/The Appellant , 2. प्रदिव िी/ The Respondent. 3. आयकरआयुक्त CIT 4. दवभ गीयप्रदिदनदि, आय.अपी.अदि., मुबांई/DR, ITAT, Mumbai 5. ग र्डफ इल/Guard file.