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Income Tax Appellate Tribunal, “C” BENCH, MUMBAI
Before: SHRI PRAMOD KUMAR, VP & SHRI AMARJIT SINGH, JM
O R D E R
PER AMARJIT SINGH, JM:
The assessee has filed the present appeal against the order dated 19.11.2019 passed by the Commissioner of Income Tax (Appeals)-20, Mumbai [hereinafter referred to as the “CIT(A)”] relevant to the A.Y. 2011-12.
The assessee has raised the following grounds: - “1. That the learned CIT (A), Mumbai has grossly erred both in law and on facts in confirming the reassessment proceedings and also framing the assessment under section 143(3)/147 of the Act determining the income of the appellant at an income of Rs.5,05,00,000/- as against returned Loss of Rs. 30,080/-.
2. That the learned CIT (A) has grossly erred both in law and on facts in failing to appreciate that initiating the reassessment proceedings by issuing a notice under section 148 of the Act, without satisfying the statutory preconditions as envisaged under section 147 of the Act, and hence initiation of the reassessment proceedings is bad in law.
2.1 That the learned CIT (A) has grossly erred both in law and on facts in failing to appreciate that learned AO has initiated the reassessment proceedings by issuing a notice under section 148 of the Act, merely on the basis of the alleged information received from the DCIT, Central Circle 2(4), Mumbai without there being any tangible material for the formation of the reason to believe, and hence initiation of the reassessment proceedings is unsustainable in law.
2.2 That the learned CIT (A) has grossly erred both in law and on facts in confirming additions made u/s 68 of the Act and failing to appreciate that since the amount of Rs.5,00,00,000/- paid to Sterling Sez & Infrastructure Limited through account payee cheque and source of the same was also submitted along with confirmation, bank statement and copy of IT acknowledgement for AY2011-12, as such, assumption of jurisdiction to make disallowance of the aforesaid sum u/s 68 of the Act is wholly unsustainable in law.
2.3. That the learned CIT (A) has grossly erred both in law and on facts in failing to appreciate that reasons to believe are justiciable and to justify the reopening of the assessment, only reasons recorded has to be looked into, and since the reasons to believe has been recorded without appreciating the facts of the case and solely on the basis of the information received from the DCIT, Central Circle 2(4), Mumbai as such, assumption of jurisdiction is bad in law.
3. The learned CIT (A) has grossly erred both in law and on facts in confirming addition of Rs. 5,00,000/- u/s 40A(3) of the Act.
That the learned CIT (A) has grossly erred both in law and on facts in failing to appreciate the adverse findings recorded by the learned AO are perverse and have been recorded without any material and hence such findings are vitiated and deserve to be deleted.
4.1. The learned CIT (A) has grossly erred both in law and on facts in disposing the appeal without providing to the appellant, a fair, proper and meaningful opportunity of being heard, violating the principles of natural justice and thus such an order is vitiated both on fact and in law.
The learned CIT (A) has erred in confirming the charging of interest of Rs.1,56,00,564/- u/s 234B of the Income Tax Act, 1961.
The above grounds of appeals are independent of, and without prejudice to each other.
That the appellant craves leave to add, alter, amend or withdraw all or any grounds herein or add any further grounds as may be considered necessary either before or during the hearing of these grounds.”
We have heard the argument advanced by the Ld. Representative of the Department and has gone through the case file carefully. We find that the CIT(A) has decided the matter of controversy in the absence of the assessee. We find that Ld. CIT(A) has dismissed the appeal for non- prosecution. It is incumbent upon the Ld. CIT(A) to pass an order on the merits of the case and not to dismiss the appeal for want of non- prosecution.
4. For this proposition we place reliance upon the following case laws. (1) CIT Vs. Premkumar Arjundas Luthra (HUF) (2017) 154 DTR (Bom) 302 (2) CIT Vs. S Chenniappa Mudaliar (1969) 74 ITR 1 (SC) 5. Accordingly in the interest of justice, we remit the issue raised in the appeal to the file of the Ld. CIT(A). Ld. CIT(A) is directed to consider the issue afresh and pass an order on the merits of the case after giving an opportunity of being heard. Therefore, in the said circumstances, we are of the view that the order of the CIT(A) is not liable to be sustainable in the eyes of law, therefore, we set aside the finding of the CIT(A) on all the issues and restore the matter before the CIT(A) to decide the matter afresh by giving an opportunity of being heard to the assessee in accordance with law. 6. In the result, the appeal filed by the assessee is hereby allowed for statistical purposes. Order pronounced in the open court on 06/04/2022 Sd/- Sd/- (PRAMOD KUMAR) (AMARJIT SINGH उपधध्यक्ष / VICE PRESIDENT न्यधनिक सदस्य/JUDICIAL MEMBER मुंबई Mumbai; ददनांक Dated : 06/04/2022 Vijay Pal Singh, (Sr. PS)