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Income Tax Appellate Tribunal, DELHI BENCH: ‘SMC’ NEW DELHI
Before: SHRI H. S. SIDHU
ORDER This appeal is filed by assessee against the Order dated 15.11.2018 passed by the Ld. CIT(A)-18, New Delhi relating to Assessment Year 2007-08 on the following grounds:-
1. On the facts and circumstances of the case, the order passed by the learned Commissioner of Income Tax (Appeals) [CIT(A)] is bad both in the eye of law and on facts.
2. (i)On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in passing the exparte order without giving the assessee an opportunity of being heard is clear violation of the principle of Natural Justice.
(ii) That the non-appearance before the CIT(A) was because of the reasons beyond the control of the assessee.
On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in rejecting the contention of the assessee that the initiation of the reassessment proceedings and the reassessment order are bad both on facts and in law and liable to be quashed as the statutory conditions and procedure prescribed under the statute have not been complied with.
4(i) On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in rejecting the contention of the assessee that the reassessment proceedings initiated by the learned AO are bad in the eye of law as the reasons recorded for the issue of notice under Section 148 are bad in the eye of law and are contrary to the facts.
(ii) On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in rejecting the contention of the assessee that the reassessment order passed by the AO. is bad and liable to be quashed as the same has been reopened on the basis of the reasons which are vague and has been recorded without application of mind on the part of the AO.
5. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in confirming the addition of an amount of Rs.4,83,821/- being the purchases from M/s Shree Bankey Bihari Trading Co.
On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in confirming that these are not engaged in the actual business ignoring the fact that during the course of the search substantial inventory in respect of the material being purchased by the assessee were found which confirm the fact that these firms were doing actual business.
On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in rejecting that the inference drawn by the AO merely on the basis of a statement that these firms are not in actual business is baseless and contrary to the facts on record.
On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in confirming the addition despite the fact that purchases were made in regular course of the business and material so purchased was sold in the regular course of business.
On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in rejecting the contention of the assessee that the addition so made on the basis of material collected at the back of the assessee is bad in law and liable to be deleted.
On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in rejecting the contention of the assessee that the addition made by the learned AO is untenable in the eye of law having been made without providing opportunity to cross examine the person on the basis of whose statement the allegation have been made against the assessee and without following the principle of natural justice.
The appellant craves leave to add, amend or alter any of the grounds of appeal.
2. At the time of hearing, Ld. Counsel for the assessee stated that the issue in dispute is squarely covered in favour of the assessee by the decision of the ITAT, SMC-3, Bench dated 25.11.2016 in assessee’s own case for the assessment year 2006-07 passed in ITA No. 2861/Del/2016. He attached the copy of the said decision at page nos. 25-46 of the Paper Book. He requested that respectfully following the aforesaid case, the issue in dispute may be decided in favour of the assessee. But at the time of hearing, the Bench pointed out that Ld. CIT(A) has passed the impugned exparte order, but why the assessee did not appear before the Ld. CIT(A) on 04.10.2018; 24.10.2018 and 14.11.2018. But Ld. AR for the assessee could not give any explanation for the same.
3. On the contrary, Ld. DR has strongly opposed the request of the ld. Counsel for the assessee and stated that assessee remained cooperative before the Ld. CIT(A). However, he should represent his case before the Ld. CIT(A) who passed according to facts of the case and the other documentary evidences filed by the Assessee.
4. I have heard both the parties and perused the records available with me especially the impugned order dated 15.11.2018 passed by the Ld. CIT(A). I find that assessee filed the appeal before the Ld. CIT(A) against the assessment order dated 25.3.2015 passed u/s. 143(3)/147 of the I.T. Act. The AO has held that list of accommodation entries provided by Sh. Rakesh Gupta and Vishesh Gupta and Navneet Jain and Sh. Vaibhav Jain pertaining to assessment year 2007-08 and noticed that entries have been taken by the assessee from Sh. Bankey Bihari Trading Company amounting to Rs. 4,83,821/-. The said persons during the assessment proceedings u/s. 153A of the I.T. Act admitted that they have given accommodation entries to the parties whose list have been provided by them to the ACIT, Circles-10, New Delhi. The AO has reopened the case of the assessee after obtaining the approval from the Competent Authority and adopted the prescribed procedure as per law and made the addition in dispute by holding that assessee has taken bogus purchases bill/ accommodation entries. Since no books of accounts were produced during the assessment proceedings and no reply was filed by the assessee in response to the show cause notice by the revenue authority, hence, it is very clear that assessee has nothing to say in this regard and the Ld. CIT(A) has given 03 opportunities to the assessee for substantiating the claim before, assessee remained non-cooperative and did not appear before the Ld. CIT(A) and therefore, the Ld. CIT(A) has passed the exparte order. Under the circumstances, it is not possible for me to pass any favourable order on the basis of any precedent without providing opportunity to the Ld. CIT(A) to go through the documentary evidences filed by the assessee and decide the issue accordingly. In the interest of justice, I am of the view that the matter requires reconsideration at the level of the Ld. CIT(A). Accordingly, I set aside the issues in dispute to the file of Ld. CIT(A) with the directions to decide the same afresh, after giving adequate opportunity of being heard to the assessee. Assessee is also directed to fully cooperate with the Ld. CIT(A) and did not take any unnecessary adjournment and file all the necessary documentary evidences before him.
In the result, the appeal filed by the assessee stands allowed for statistical purposes.