SH. VIRENDRA PAL TOMAR,MATHURA vs. I.T.O.-3(4), MATHURA

BECAUSE, the Ld. CIT(A) was legally not justified in assuming powers of Appellate Tribunal in deciding the

BECAUSE, while making the assessment the authorities below were unjustified in making and sustaining the addition, referring to provisions of Section 44AD of the Act which section to not apply to the facts of the case in hands.

BECAUSE, upon overall consideration of facts and in the circumstances of the case the learned 'AO' while framing assessment under section 143(3) of the Act ought to have framed the assessment keeping in view the past history of the 'appellant'. Addition of Rs. 17,76,003/- as made by the learned 'AO' by estimating Profit @ 8% of Gross Receipt is highly excessive and needs to be reduced to minimum.

BECAUSE, the learned 'AO' was highly unjustified in making separate addition in respect 'Interest on FDR's on wrong presumption that 'investment in FDR's are just to earn interest' failing to take note of the fact that 'FDR's so made were for the purpose of Business and ought not to have been separately added.

BECAUSE, the 'appellant' denies levy of interest under section 234A & 234B of the Act as the Return was filed

BECAUSE, while making the assessment the AO and CIT(A) made various observations/ conclusions which are contrary to facts available on records. While making the addition submission made and evidences filed have been rejected arbitrarily.

BECAUSE, the order appealed against is arbitrary, illegal, contrary to the facts, material on record, law and principles of natural justice. The 'appellant' reserves his right to add, delete, modify, alter or substitute any or all the grounds of appeal.”

As per Ground No. 1, the ld. CIT(A) is not justified in not adjudicating the merits of the case while passing the impugned order. In this regard, it is seen that the ld. CIT(A) has disposed of the assessee’s appeal in limine since the assessee did not come present before the ld. CIT(A). 3. In my considered opinion, the matter, in the interest of justice, requires to be remitted to the file of the ld. CIT(A), to be decided afresh, on merits. So far as regards the reason for non-appearance before the ld. CIT(A), in the synopsis filed by the assessee, it has been submitted as follows: “It is respectfully submitted that compliance could not be made to Notice dated 18.03.2016 as the undersigned was in the

In this process the confusion got created which resulted into non-appearance on the date appointed.

Appellant' otherwise was keen to get its appeal decided and is law abiding and complying assessee which fact is also ascertainable from the Assessment order under appeal where at the stage of assessment due representation was made and due reply was also filed.” In this regard, in ‘Kanta Khanna vs. ACIT’, vide order (copy placed on 4. record) passed by the Delhi Bench of the Tribunal on 09.09.2015, it has been observed as follows: “Having heard the submissions of both the parties, I am of the opinion that the order passed by the learned CIT(Appeals) cannot be sustained in the eye of law. Even if the CIT(A) wanted to dispose of the appeal, ex parte, qua the assessee, even then, being first appellate authority, he was duty bound to dispose of the issues raised before him on merits. Therefore,

In the result, for statistical purposes, the appeal is treated as allowed.