BRAHMA BEVERAGES (P) LTD.,NEW DELHI vs. ACIT, CIRCLE-5(1), NEW DELHI

This appeal filed by the assessee is directed against the order dated 30th September, 2019 of the CIT(A)-2, New Delhi, relating to the assessment year 2011-12.

The assessee, in its various grounds of appeal, has challenged the ex parte order of the CIT(A) dismissing the appeal filed by the assessee due to non- prosecution.

Facts of the case, in brief, are that the assessee is a company and had not filed its return of income for the impugned assessment year. The case of the assessee was reopened u/s 147 of the Act on the ground that TDS has been deducted of an amount of Rs.97,183/- and deposits amounting to Rs.38 lakhs was made by the assessee in the bank account during the financial year 2010-11. In response to the notice u/s 148 of the Act, the assessee filed its return of income on 22.11.2018 declaring a loss of Rs.25,04,636/-. During the course of assessment proceedings, the AO asked the assessee to explain as to why the amount of Rs.38 lakhs should not be added back. In absence of any satisfactory explanation given by the assessee to explain the source of funds, the AO made addition of Rs.38 lakhs to the total income of the assessee and determined the taxable income at Rs.12,95,364/-. Since none appeared before the CIT(A), the ld.CIT(A), in the ex parte order passed by him, dismissed the appeal filed by the assessee by relying on the following decisions:- (i) Shahbad Cooperative Sugar Mills Ltd., 38 taxman.com 204 (P&H); (ii) CIT vs B.N. Bhattacharya (1977) 118 ITR 461 (SC); (iii) Vipul Lgistic & Warehousing Pvt. Ltd. Vs ITO, - ITAT, Delhi; and (iv) CIT vs Multiplan (India) (P) Ltd. [1991] 38 ITD 320 (ITAT - Del),

We have heard the rival arguments made by both the sides and perused the orders of the AO and the CIT(A). We find, the AO, in the instant case, completed the assessment u/s 147/143(3) of the Act, determining the total income of the assessee at Rs.12,95,364/- as against the returned loss of Rs.25,04,636/- on the ground that the assessee could not explain to his satisfaction regarding the source of deposits of Rs.38 lakhs in his bank account. We find, the ld.CIT(A) dismissed the appeal filed by the assessee for want of prosecution on the ground that despite three opportunities granted, there was no compliance from the side of the assessee. It is the submission of the ld. Counsel that due opportunity was not granted by the CIT(A) and, further, the ld. CIT(A) has not decided the appeal on merit. It is his submission that given an opportunity, the assessee shall explain the source of deposit of Rs.38 lakhs in the bank account. As per the provisions of section 250(6) of the IT Act, the order of the CIT(A) disposing of the appeal shall be in writing and shall set the points for determination, the decision thereon and the reason for the decisions. However, in the instant case, the ld.CIT(A) has simply dismissed the appeal for want of prosecution by relying on various decisions and has not decided the appeal on merit which he is required to do as per the statute. Considering the totality of the facts of the case and in the interest of justice, we deem it proper to restore the issue to the file of the CIT(A) with a direction to grant one final opportunity to the assessee to substantiate its case and decide the issue as per fact and law. The assessee is also hereby directed to appear before the CIT(A) and substantiate its case without seeking any adjournment under any pretext, failing 3 which, the ld.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.

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