CENTURY COMMUNICATION LTD.,NOIDA vs. DCIT, NEW DELHI

“That an appeal against the impugned order of the learned A.O. was filed before CIT (Appeals) on 26th April 2013 but CIT (Appeals) has passed an Ex-Parte order by confirming the demand of Ld. A.O. on 29.02.2016 without taking into consideration the reasons due to which the appellant could not provide the necessary documents and evidence and could not attend the hearings before the CIT (Appeals). Some of the reasons are provided below:- (a) That Mr. Anand Tiwari, one of the Directors of the Appellant Company has been suffering from a chronic liver disease for the past 4-5 years. On account of his severe illness he has been admitted/treated in various hospitals in India as well as abroad on innumerable occasions and has been bed-ridden for most of the time during these years. The medical record of Mr. Anand Tiwari is voluminous and the same can be filed before this Hon'ble Tribunal; if so directed. On account of his severe medical condition; Mr. Anand Tiwari has been completely incapacitated in dealing with the affairs of the company in any manner whatsoever. In any event, the affairs of the company, particularly financial and taxation related matters of the company were being looked after by Mr. P.K. Tiwari, the other Director of the company, from the very inception. (b) That Mr. P.K. Tiwari, the other director of the appellant company, was himself suffering from various illnesses and had also been incarcerated during the relevant time. Due to financial crisis, the company had started making defaults in paying installments to various banks and also in fulfilling other financial obligation. Consequently, the banks had filed false & frivolous complaints with the Central Bureau of Investigation (C.B.I.). The C.B.I. officials had started making inquiries not only from the directors, but also from the family/staff members etc. The C.B.I. officials had also started calling not only the directors, but also the staff members, to their office. The C.B.I. officials had started making visits to the office of the company. Mr. P.K. Tiwari was incarcerated in connection with the CBI cases from July, 2012 to October, 2012 and from September 2014 to March 2015. The Appellant Company was going through severe financial crunch during all these years, due to which most of the company staff left the company as their salaries could not be paid. On the other hand, Mr. P.K. Tiwari could not devote time to pursue the appeals on account of the aforementioned reasons. On account of his advance age, frequent incarceration and the extra ordinary financial crises and other adverse conditions, Mr. P.K. Tiwari was under acute depression and could not therefore, focus on the matter. (c) That the senior officials of the company in finance department left the company after committing serious acts of omissions and commission. It is learnt that such officials had been involved in various irregularities due to which the company and its present 2 directors have suffered the extra ordinary circumstances and trauma. On account of such grave situation, the matter before the respondent could not be pursued in a proper manner. (d) That the authorized representative, representing the appellant company before the respondent extracted huge money from the appellant but did not properly put forward the case before the respondent. They should at least have represented the difficulties being faced by the company and ought to have defended the appellant to the best of their capacity on the basis of records which were within their possession and knowledge. But most unfortunately they failed to perform their professional duty, resulting in passing of the impugned order. (e) That the respondent ought to have considered the aforementioned bona fide reasons and extra ordinary circumstances and should have granted further time to the appellant to satisfy the respondent on the aspect that the demand raised by the Ld. A.O. was illegal and unwarranted. The ex-parte order passed by the respondent is unwarranted and has resulted in extreme prejudice to the appellant. (f) That the appellant is entitled for hearing instead of the case being decided unheard. (g) That the failure on part of the appellant in pursuing its appeal was neither deliberate nor intentional and the same was occasioned due to reasons mentioned above. (h) That the extra-ordinary adverse situation suffered by the appellant entitles it for a fair hearing before this Tribunal so that the case can be decided on merits instead of being thrown out on account of non representation. (i) The company did everything within its power by engaging professionals to represent it before the respondent but the said professionals failed to perform their duty by not advising the company in the matter and by not representing it in bona-fide manner. (j) That the company sought a number of adjournments and tried to present its case. (k) That due to lack of funds and non availability of documents as explained above, the company, inspite of taking many adjournments, was not able to defend its case before CIT (Appeals).

That the assessment order dated 18.03.2013, passed by the Ld. A.O. U/s 144 r.w.s. 153A, is bad in law.

That the assessment order dated 18.03.2013 passed u/s 144 r.w.s. 153A, deserves to be quashed, because natural justice has been denied by the Ld. A.O. to the assessee.

That on the facts of the case and under the law, the Ld. A.O. has erred in altogether ignoring the assessee's reply, vide Receipt dated 15.03.2013(dispatched through Postal Authorities Vide Receipt dated 15.03.2013 and also on the Dak counter Vide Receipt dated 18.03.2013].

That the Ld. A.O. has erred in not sticking to the assessment made by the regular assessing officer u/s 143(3], particularly when no specific adverse material had been found/seized by the I.T. Deptt. During the course of search & seizure operation.

That on the facts of the case and under the law, the Ld. A.O. has erred in making disallowance of Rs. 22,76,02,580/-, on account of alleged bogus claim of depreciation on the plant & machinery. The observation of the Ld. A.O. are either factually incorrect or are legally untenable.

That on the facts of the case and under the law, the Ld. A.O. has erred in making disallowance of Rs. 23,84,72,870/- (difference between the total depreciation claimed at Rs. 46,60,75,450/- and the depreciation separately disallowed at 22,76,02,580/-) on account of depreciation claimed for want of details. The observation of the Ld. A.O. are either factually incorrect or are legally untenable. 10. That on the facts of the case and under the law, the Ld. A.O. has erred in making disallowance of Rs. 20,00,000/-, on account of alleged bogus claim of salary paid to Mrs. Meena Tewari. The observation of the Ld. A.O. are either factually incorrect or are legally untenable. 11. That on the facts of the case and under the law, the Ld. A.O. has erred in making addition of Rs. 9,41,40,204/-, on account of investment Rs. 2,09,88,610/- in the property bearing flat No.703, Garage No.4, C-Bull Co- operative Housing Society, Shirley Rajan Road, Bandra (West) Mumbai and Rs. 7,31,57,594/- in property No. 41, 6th foor, Jayant Tech Park, Mount Poonamallee High road, Chennai, thereby treating the same as unexplained investment. The observation of the Ld. A.O. are either factually incorrect or are legally untenable. The investment in the said property were duly accounted for/recorded in the books of accounts and were reflected in the balance sheet. 12. That on the facts of the case and under the law, the Ld. A.O. has erred in making disallowance of Rs. 1,14,500/-, on account of expenditure of more than Rs. 20,000/- in cash. The observation of the Ld. A.O. are either factually incorrect or are legally untenable. 13. That on the facts of the case and under the law, the Ld. A.O. has erred in making addition of Rs. 122,73,29,612/-, on account of investment in plant & machinery , thereby treating the same as unexplained investment. The observation of the Ld. A.O. are either factually incorrect or are legally untenable. The investment in the said plant & machinery were duly accounted for/recorded in the books of accounts and were reflected in the balance sheet.

That on the facts of the case and under the law, the Ld. A.O. has erred in making disallowance of Rs. 7,17,869/- u/s 14A r.w.r.8D. The observation of the Ld. A.O. are either factually incorrect or are legally untenable.

That on the facts of the case and under the law, the Ld. A.O. has erred in making addition of Rs. 20,00,00,000/-, on account of alleged investment in United Kingdom based Company" Men from Mars" thereby treating the same as undisclosed investment. The observation of the Ld. A.O. are either factually incorrect or are legally untenable.

That the total income assessed at Rs. 204,96,92,235/- is arbitrary, unjust, illegal & highly excessive.

That the additional income tax liability created at Rs. 65,93,20,757/- is arbitrary, unjust, illegal & highly excessive.

That on the facts of the case and under the law, the Ld. A.O. has erred in charging interest u/s 234A. Without prejudice, the interest charged is highly excessive.

That on the facts of the case and under the law, the Ld. A.O. has erred in charging interest u/s 234B, Without prejudice, the interest charged is highly excessive.

That on the facts of the case and under the law, the Ld. A.O. has erred in charging interest u/s 234D, Without prejudice, the interest charged is highly excessive. That the reasonable opportunity be provided to the Company for evidencing and establishing the above mentioned grounds which it could not do before the CIT (Appeals). The appellant craves leave to raise additional ground(s) of appeal to alter/modify the ground(s) of appeal, and/or to withdraw the ground(s) of appeal, either prior to or during the course of appellate proceedings.”

The assessee company i.e. M/s Century Communication Ltd. belongs to Mahuaa Media Group of cases. As per the original return filed on 20.02.2009, the assessee company disclosed total income of Rs. NIL with Book Profit of Rs. 32,98,29,062/- for A.Y. 2008-09. The income of the assessee was assessed at Rs. 5,93,14,600/- with Book Profit of Rs. 32,98,29,062/- thereby passing order under Section 144 r.w.s. 153A of the Income Tax Act.

We have heard the Ld. DR and perused all the relevant material available on record. It is pertinent to note that the assessment order is passed under Section 144 r.w.s. 153A of the Income Tax Act since the assessee did not appear before the AO. We find, the CIT(A) has ignored the evidences produced before him by the assessee and dismissed the appeal of the assessee solely on the basis of the Assessment order. Thus, principles of natural justice was not followed by the ld. CIT(A). Hence, considering the totality of the facts of the case and in the interest of justice it will be appropriate to remand back the matter to the file of the CIT(A) for proper adjudication. Needless to say, the assessee be given opportunity of hearing by following principles of natural justice. Thus, is partly allowed for statistical purpose.