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Income Tax Appellate Tribunal, Hyderabad ‘ B ‘ Bench, Hyderabad
Before: Shri R.K. Panda & Shri K. Narasimha Chary
आयकर अपील�य अ�धकरण, हैदराबाद पीठ IN THE INCOME TAX APPELLATE TRIBUNAL Hyderabad ‘ B ‘ Bench, Hyderabad Before Shri R.K. Panda, Accountant Member AND Shri K. Narasimha Chary, Judicial Member Assessment Year: 2014-15 Samriddhi Petroproducts Vs. Dy. C.I.T Private Limited Circle 3(1) Hyderabad Hyderabad PAN:AARCS2499F (Appellant) (Respondent) Assessee by: Advocate Mohd Afzal Revenue by: Shri Kumar Aditya, DR Date of hearing: 13/12/2022 Date of pronouncement: 15/12/2022 ORDER Per R.K. Panda, A.M This appeal filed by the assessee is directed against the order dated 27.09.2022 of the learned CIT (A)-NFAC, Delhi relating to A.Y. 2014-15.
Facts of the case, in brief, are that the assessee is a company engaged in the wholesale and retail trade of auto gas. It filed its return of income on 30.09.2014 declaring nil income after setting off of brought forward losses of Rs.28,54,332/-. The case was selected for scrutiny and the Assessing Officer completed the assessment u/s 143(3) on 12.09.2016 determining the total income at Rs.2,16,571/-. Subsequently, the learned CIT assumed
ITA 580 of 2022 Samriddhi Petropfoducts P Ltd jurisdiction u/s 263 of the I.T. Act on the ground that the Assessing Officer has not made inquiries correctly and also the valuation report in respect of value of shares is discounted cash flow method, the turnover estimated in future assessment years is exorbitant. He further noted that the assessee received loans in cash. Rejecting the various explanation given by the assessee, he set aside the original assessment to the file of the Assessing Officer with a direction to redo the assessment in accordance with law.
2.1 Subsequently, the Assessing Officer vide order dated 31.12.2019 passed u/s 143(3) r.w.s. 263 of the I.T. Act completed the assessment determining the total income at Rs.4,10,47,326/- wherein he made addition of Rs.74,50,000/- towards share premium and Rs.4,10,47,326/- being addition u/s 68 of the I.T. Act on a/c of loan received by the assessee company on the ground that the assessee could not provide documentary evidence in terms of provisions of section 68 of the I.T. Act.
The assessee preferred an appeal before the CIT (A)- NFAC. However, during the faceless appellate proceedings despite issuance of several notices to the assessee, none appeared on behalf of the assessee. Therefore, the CIT (A)-NFAC in the ex-parte order dismissed the appeal filed by the assessee by observing as under: “5.3 During appellate proceedings there has been no response by the appellant. It is clear that the appellant has nothing to say in support of grounds raised. In these facts and circumstances, I am in agreement with the action of the Assessing Officer and hold that the appellant is unable to substantiate the claims and is not able to controvert the assessment order. The addition made by the Assessing Officer is therefore confirmed.
ITA 580 of 2022 Samriddhi Petropfoducts P Ltd
5.4 The appellant has not been able to defend its grounds. Hence, grounds raised rejected.”
Aggrieved with such order of the learned CIT (A) the assessee is in appeal before the Tribunal by raising the following grounds of appeal: 1. “The order of the learned Commissioner of Income Tax (Appeals) is against the law, weight of evidence and probabilities of case.
2. The learned Commissioner ought to have appreciated that the order u/s 263 dt: 28.02.2019 of the IT Act passed by the Pr.CIT is restored to the file of the Pr.CIT by the Hon'ble ITAT therefore, the adjudication of the order u/s 143(3) r.w.s 263 should have been kept in abeyance till the disposal of order u/s 263 by the Pr.CIT.
3. The learned Commissioner ought have appreciated that order u/s 143(3) r.w.s 263 is germinated from the order of the Pr.CIT| u/s 263 dt: 28.02.2019, as the order u/s 263 is restored to the file of the ITAT, Rs.1,57,34 958/- 3 therefore, the decision in respect of order u/s 143(3) r.w.s 263 should have been kept in abeyance, therefore, erred in dismissing the appeal of the assessee.
4. In the facts and circumstances of the case the learned CIT(A) erred in confirming the Rs.1,57,34 958/- 4 order of the Assessing Officer by dismissing the assessees appeal.
5. The learned Commissioner ought to have 5 Rs.1,57,34,958deleted the additions made u/s 68 as the assessee has provided all the details of unsecured loans at Rs.4,10,47,326/- and also details of share premium received at Rs.74,50,000 during the course of original assessment proceedings.
6. The appellant craves leave to add to, amend or modify the above grounds of appeal either before or at the time of hearing of the appeal, if it is considered necessary”.
The learned Counsel for the assessee submitted that despite adjournment applications filed before the CIT(A)-NFAC requesting him to keep the appeal proceedings in abeyance since the assessee has challenged the 263 proceedings, the CIT(A)- NFAC has passed the order ex-parte without giving any reasonable opportunity of being heard to the assessee. Further, CIT(A)-NFAC has not passed a speaking order while dismissing the appeal of the assessee. He accordingly submitted that in the Page 3 of 6
ITA 580 of 2022 Samriddhi Petropfoducts P Ltd interest of justice, the matter should be restored to the file of the Assessing Officer with a direction to adjudicate the issue afresh after giving due opportunity of being heard to the assessee.
The learned DR, on the other hand, while supporting the order of CIT(A)-NFAC drew the attention of the Bench to the various notices issued by the CIT(A)-NFAC through e-mail which were delivered to the assessee. He submitted that despite number of opportunities granted by the CIT(A)-NFAC the assessee never bothered to file the requisite documents to substantiate his case. Therefore, the grounds raised by the assessee should be dismissed.
We have heard the rival arguments made by both the sides, perused the orders of the AO and the learned CIT (A)-NFAC and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us by both sides. We find the AO in the instant case completed the assessment u/s 143(3) r.w.s. 263 of the I.T. Act determining the total income at Rs.4,84,97,326/- wherein he made addition of Rs.74,50,000/- towards share premium and Rs.4,10,47,326/- u/s 68 of the I.T. Act on account of unsecured loan. We find the learned CIT(A)- NFAC in the ex-parte order sustained the addition made by the Assessing Officer. A perusal of the order of the CIT(A)-NFAC show that the CIT(A)-NFAC has dismissed the appeal of the assessee on account of non-appearance and he has not decided the issue on merit by passing a speaking order as required u/s 250(6) of the I.T. Act. As per provisions of section 250(6) of the I.T. Act, the order of the CIT (A) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and ITA 580 of 2022 Samriddhi Petropfoducts P Ltd the reason for the decision. However, in the instant case, the learned CIT(A)-NFAC in a very cryptic order has dismissed the appeal filed by the assessee stating that the assessee has nothing to say in support of the grounds raised. We further find merit in the argument of the learned Counsel for the assessee that when the order u/s 263 dated 28.2.2019 was restored to the file of the PCIT by the Tribunal vide order dated 29.6.2021 for A.Y 2014-15 therefore, the learned CIT(A)-NFAC should have kept the hearing of the appeal in abeyance. Since the learned Counsel for the assessee has filed the order of the Tribunal in assessee’s own case for the A.Y 2014-15 wherein the Tribunal has restored the issue to the file of the PCIT to consider the appeal afresh on merits by providing one more opportunity of being heard to the assessee and decide the issue afresh, therefore, considering the totality of the facts of case and in the interest of justice, we deem it proper to restore the issue to the file of the CIT (A)-NFAC with a direction to grant one last opportunity to the assessee to substantiate his case and decide the issue as per fact and law. The grounds raised by the assessee are accordingly allowed for statistical purposes.
In the result, appeal filed by the assessee is allowed for statistical purposes.