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Income Tax Appellate Tribunal, LUCKNOW BENCH “A”, LUCKNOW
Before: SHRI A.D JAIN & SHRI T.S. KAPOOR
PER: A.D. JAIN, VICE PRESIDENT:
This is assessee’s appeal for Assessment Year 2013-14 against the order of the ld. CIT(A)-II, Kanpur dated 22.09.2017, taking the following grounds: “I. The Ld. Commissioner of Income Tax (Appeals)-II, Kanpur [here-in- after referred to as the Ld. CIT (A)'s] grossly erred in law and on facts in not affording any opportunity to the appellant Co. to have its say or make necessary compliance in support of the Grounds of Appeal so filed before him and passing and ex-parte order against all settled principles of laws and natural justice and fair-play and thus the order so passed may be ordered to be quashed. Notwithstanding and without Prejudice to Ground No. I above :-
II. The Ld. CIT (A)'s grossly erred on facts and in law in conforming the addition of Rs.33,75,000/- made by applying the provisions of
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section 56(2)(viib) of the I.T. Act, 1961 allegedly being the amount received on issue of shares over the fair market value of the shares in gross violation of the settled principles of law and also in ignoring the valuation of shares so filed before the AO and thus the addition so confirmed may be ordered to be deleted. III. In confirming the addition of Rs.33,75,000/- the Ld. CIT (A)'s chose to ignore and rather failed to appreciate the fact that the valuation of shares has been done by a CA by adopting the norms and whereas the valuation so adopted by the AO was not based on any scientific basis but a arbitrary figure having no basis only adopted as per whims and fancies and on notions, conjectures and surmises and thus the addition on this ground also needs to be deleted. IV. The Ld. CIT (A)'s further grossly erred on facts and in law in conforming the addition of Rs.47,88,040/- by allegedly holding that payments in violation of sec. 40A(3) of the Act have been made under various heads and without verifying the facts whereas the entire details are available as the accounts are also verifiable. V. The addition so sustained is very highly excessive, contrary to facts, laws and principles of natural justice and fair-play and thus may kindly be ordered to be quashed/annulled.”
When this appeal was called out for hearing, none appeared on behalf 2.
of the assessee, nor any application for adjournment has been filed. We find
that proper RPAD notice of hearing had been sent to the assessee at the
address provided, which has been returned, as was the case with earlier three RPAD notices, by the postal authorities with the remark “Praptkarta nahi rahta”. However, we find that this appeal can be disposed of in the absence of the assessee. Therefore, we are proceeding to dispose of the appeal after
hearing the ld. DR and after considering the material placed on record.
By virtue of the impugned order, the ld. CIT(A) has dismissed the assessee’s appeal for non prosecution, observing that notice was issued but not even a single compliance has been made; that however, no written
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submission or paper book had been filed in support of any of the grounds of appeal taken; and that none had attended on behalf of the assessee.
Heard. We find that the CIT(A) has dismissed the appeal without providing proper opportunity to the assessee. Moreover, he has not decided the appeal after discussing in detail, his reasons for agreeing with the
assessment order. As such, another opportunity of hearing requires to be
given to the assessee to represent his case fully before the ld. CIT(A). Even otherwise, it is trite [‘S. Velu Palandar Vs. DCIT’ 83 ITR 683 (Mad.)] and incumbent on the ld CIT(A) to decide an appeal on merit even in the absence
of any representation before them. 5. In view of the above, the matter is remitted to the file of the ld. CIT(A) to
be decided afresh on merit, in accordance with law, on affording due and
adequate opportunity of hearing to the assessee. The assessee, no doubt, shall cooperate in the fresh proceedings before the ld. CIT(A). All pleas available under the law shall remain so available to the assessee. Ordered
accordingly. 6. In the result, for statistical purposes, the appeal is treated as allowed. Order pronounced in the open court on 06/09/2019. Sd/- Sd/- (T.S. Kapoor) (A.D. Jain) Accountant Member Vice President Aks – Dtd. 06 /09/2019
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Copy of order forwarded to: (1) The appellant (2) The respondent (3) Commissioner (4) CIT(A) (5) Departmental Representative (6) Guard File
By order
Assistant Registrar
DATE OF DICTATION 04.09.2019 2. DATE ON WHICH TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 04.09.2019 DATE ON WHICH TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER………………… 2.A 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE PS/SR.P.S. 4. DATE ON WHICH THE ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE ORDER COMES BACK TO PS/SR.P. 6. DATE OF UPLOADING THE ORDER ON WEBSITE IF NOT UPLOADED, FURNISH THE REASON FOR DOING SO………………… 7. 8. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 09.09.2019 DATE ON WHICH ORDER GOES FOR XEROX & ENDORSEMENT………….... 9. 10. DATE ON WHICH THE FILE GOES TO THE O.S. 11. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER……………………………… 12. THE DATE ON WHICH THE FILE GOES TO DESPATCH SECTION FOR DESPATCH OF THE TRIBUNAL ORDER……………………………… DATE OF DESPATCH OF ORDER…………………… 13.