DELOITTE TOUCHE TOHMATSU INDIA LLP (SUCESSOR OF DELOTTE TOUCHE TOHMATSU INDIA PVT. LTD,MUMBAI vs. ACIT -CIR 6(2) (1), MUMBAI

Per contra the Ld. DR after taking note of the aforesaid fact and also the fact that the assessee had filed additional evidences before the Ld. CIT(A) since there was reasonable cause for not presenting the A.Y. 2012-13 Deloitte Touche same before the AO and the fact that certain mistakes as alleged by the assessee need to be looked into as pointed out by the assessee it would be better to remit the issue back to the AO for denovo assessment.

We have heard both the parties and perused the record. We note that the AO has disallowed of Rs.3,11,21,939/- u/s 36(1)(iii) of the Act which according to the assessee was made without appreciating the relevant facts which could not be provided to the AO, since assessee didn’t get proper opportunity before AO. Thereafter the assessee had to file additional evidence before the Ld. CIT(A)/explaining its claim. After going through the aforesaid facts we are of the opinion that the assessee did not get proper opportunity before the AO, therefore, relying on the decision of the Hon’ble Supreme Court in the case of Tin Box Company Vs. CIT (supra) wherein the Hon’ble Supreme Court has held as under: - “ It is unnecessary to go into great detail in these matters for there is a statement in the order of the Tribunal, the fact-finding authority, that reads thus : "We will straightway agree with the assessee's submission that the ITO had not given to the assessee proper opportunity of being heard." That the assessee could have placed evidence before the first appellate authority or before the Tribunal is really of no consequence for it is the assessment order that counts. That order must be made after the assessee has been given a reasonable opportunity of setting out his case. We, therefore, do not agree with the Tribunal and the High Court that it was not necessary to set aside the order of assessment and remand the matter to the assessing authority for fresh assessment after giving to the assessee a proper opportunity of being heard. A.Y. 2012-13 Deloitte Touche 2. Two questions were placed before the High Court, of which the second question is not pressed. The first question reads thus : "1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in not setting aside the assessment order in spite of a finding arrived at by it that the Income-tax Officer had not given a proper opportunity of hearing to the assessee ?" In our opinion, there can only be one answer to this question which is inherent in the question itself : in the negative and in favour of the assessee. 3. The appeals are allowed. The order under challenge is set aside. The assessment orders, that of the Commissioner (Appeals) and of the Tribunal are also set aside. The matter shall now be remanded to the assessing authority for fresh consideration, as aforestated. No order as to costs.”

Since we have found in the present case that no reasonable opportunity the assessee got before the AO, we relying on the aforesaid decision of the Hon’ble Supreme Court in the case of Tin Box Company (supra) set aside the impugned order of the Ld. CIT(A) and remand the issue back to the file of the AO and direct the AO to frame the assessment de-novo on the same after hearing the assessee in accordance to law. The assessee is at liberty to file documents/material written submission before the AO to substantiate its return of income. And we direct the assessee to be diligent before the AO during the assessment proceedings. A.Y. 2012-13 Deloitte Touche 7. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on this 31/05/2022.