XAVIENT SOFTWARE SOLUTIONS (I) PVT. LTD.,NOIDA vs. ACIT, CIRCLE-3, NOIDA

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ITA 1404/DEL/2018Status: DisposedITAT Delhi13 April 2021AY 2012-133 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal found that the CIT(A) dismissed the appeal without giving the assessee an adequate opportunity to present its case. Therefore, the matter was restored to the CIT(A) for a decision on merits after granting one final opportunity.

What were the facts?

The Assessing Officer added a provision for gratuity to the assessee's total income under Section 115JB for not being added to the net profit as per the Companies Act. The CIT(A) dismissed the assessee's appeal for non-prosecution.

What were the issues?

Whether the CIT(A) erred in dismissing the appeal for non-prosecution without granting adequate opportunity. Whether the provision for gratuity should be added back for the purpose of Section 115JB.

Which sections of the Income-tax Act were involved?

Section 115JB,Section 40A(7),Section 154

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, DELHI BENCH, ‘F’: NEW DELHI

Before: SHRI R.K. PANDA & MS. SUCHITRA KAMBLE

For Respondent: Smt. Sushma Singh CIT-DR
Hearing: 13.04.2021Pronounced: 13.04.2021

ORDER PER R.K. PANDA, AM :

This appeal filed by the assessee is directed against the order dated 30.11.2017 of the learned CIT(A)-I, Noida, relating to Assessment Year- 2012-13.

2.

None appeared on behalf of the assessee at the time of hearing.

We, therefore, deem it proper to decide the appeal on the basis of material available on record and after hearing the learned DR.

3.

Facts of the case, in brief, are that the assessment in this case was completed under normal provisions at an income of Rs.4,61,43,560/- and at Rs.10,36,32,406/- u/s 115JB of the Act. Subsequently, the Assessing Officer noted that the assessee has added back provision for payment of Gratuity of Rs.135.77 lakhs under normal provisions, however, the same has not been added to the net profit to make it in accordance with the provisions of Part II and III of Schedule VI of companies Act, 1956 though the same was disallowed in Tax Audit Report u/s 40A(7) of the Act.

Accordingly, he issued notice u/s 154 of the Act to the assessee. Since, there was non-compliance, the Assessing Officer passed order u/s 154 of the Act and added the amount of Rs.1,35,77,027/- to the total income of the assessee u/s 115JB of the Act.

4.

In appeal, the learned CIT(A) dismissed the appeal filed by the assessee by observing as under:-

In this case appeal was filed by the appellant through on line. Notice was therefore, sent to the appellant asking the appellant to file necessary information and paper-book, etc., to substantiate its claim and to canvass its appeal as desired. However, in response to the notice sent, the appellant submitted a letter dated 15/11/2017 and sought adjournment on the ground that the counsel of the appellant is out of station for Audit purpose. As this is not a valid reason for seeking adjournment, it appears that the appellant is not serious to prosecute its case, therefore, no meaningful purpose is to be served by keeping the appeal pending. The impugned assessment order is therefore confirmed in view of non prosecution of the appeal by the appellant. The appeal of the appellant fails and is dismissed.

5.

Aggrieved with such order of the learned CIT(A), the assessee is in appeal before the Tribunal.

6.

We have heard the learned DR and perused the record. We find the learned CIT(A) without giving adequate opportunity to the assessee has summarily dismissed the appeal filed by the assessee and has not decided the appeal on merit. Considering the totality of the facts of the case and in the interest of justice, we deem it proper to restore this issue to the file of the learned CIT(A) with the direction to grant one final opportunity to the assessee to substantiate its case and decide the issue as per fact and law by passing a speaking order. The assessee is also hereby directed to appear before the learned CIT(A) and substantiate its case, failing which, the learned CIT(A) is at liberty to pass appropriate order as per law. We hold and direct accordingly. The grounds raised by the assessee are accordingly allowed for statistical purposes.

7.

In the result, appeal filed by the assessee is allowed for statistical purpose.

Order was pronounced in the open court at the time of hearing itself

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