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Income Tax Appellate Tribunal, DELHI BENCH ‘D’ : NEW DELHI
Before: SHRI R.K. PANDA & SHRI KULDIP SINGH
PER KULDIP SINGH, JUDICIAL MEMBER : Appellant, ACIT, Central Circle 17, New Delhi (hereinafter referred to as the ‘Revenue’) by filing the present appeal sought to set aside the impugned order dated 29.04.2016 passed by the Commissioner of Income - tax (Appeals)-27, New Delhi qua the assessment year 2004-05 on the grounds inter alia that :- “1. The Ld. Commissioner of Income Tax (Appeal) has erred in law and on the facts in deleting the addition of Rs.2,98,46,183/ - made by AO on account of GP Ratio @ 16.9% of Rs.2,98,46,183/ -on the amount of Rs.17,66,04,632/- (i.e. enhanced turnover of the sales by the Trade Tax Authorities of Rs.2,98,46,183/-).
That the Ld. CIT(A) has erred in law and on facts in mentioning in her order that the order of Commercial Tax Department has attained finality without appreciating the fact that the Trade Tax Authorities have filed appeal against the said order.
3. That the Ld. CIT(A) has erred in ignoring the facts as the Trade Tax Authorities filed second appeal against the order dated 05.03.2012.”
2. Briefly stated the facts necessary for adjudication of the issue at hand are : Original assessment was framed in this case under section 153A of the Income-tax Act, 1961 (for short ‘the Act’) read with section 143 (3) of the Act at an income of Rs.3,58,55,080/- by making addition of Rs.2,98,46,183/- on the basis of estimated Gross Profit (GP) rate at 16.9% on the enhanced turnover of sales by the Trade Tax Authorities at Rs.17,66,04,632/- and one more addition was made on account of GP rate on enhanced turnover on the basis of excise duty of Rs.7,39,037/-. Then ld. CIT (A) deleted the addition of Rs.2,98,46,183/- vide order dated 26.03.2012 which order has been set aside by the Tribunal by allowing the appeal for statistical purposes to the file of ld. CIT (A) to decide afresh in the light of the observations made in the order.
Ld. CIT (A) by passing the impugned order after remand of the case by the Tribunal deleted the addition by allowing the appeal. Feeling aggrieved, the Revenue has come up before the Tribunal by way of filing the present appeal.
Assessee has not preferred to put in appearance despite issuance of the notice and consequently, we proceeded to decide the present appeal with the assistance of the ld. DR as well as on the basis of documents available on the file.
We have heard the ld. Departmental Representative for the revenue to the appeal, gone through the documents relied upon and orders passed by the revenue authorities below in the light of the facts and circumstances of the case.
Bare perusal of the operative part of the impugned order particularly para no.5 goes to prove that the ld. CIT (A) has entertained the evidence of the assessee at the back of the Assessing Officer (AO) by taking on record certificate dated 24.03.2015 of Tribunal, Commercial Tax, Kanpur confirming that the Department has not filed the revision against the order dated 05.03.2012 of First Appellate Authority of Trade Tax till 24.03.2015, another certificate dated 18.03.2016 issued by the Tribunal confirming that till date no revision has been filed against the aforesaid order dated 05.03.2012 of the First Appellate Authority of Trade Tax and proceeded to delete the addition.
Since the impugned order is based upon the fact that as per certificates dated 24.03.2015 & 18.03.2016, till that dates order of the First Appellate Authority of Trade Tax and Commercial Tax have not been challenged, copy of orders are also not on the file nor crux thereof has been extracted in the impugned order, the impugned order is not sustainable having been passed in violation of rule of natural justice as opportunity of being heard is not give to the AO to verify the documents relied upon by the assessee. Even otherwise, addition cannot be deleted merely on the certificate that till such and such date order of Tribunal has not been further challenged, unless there is categoric decision taken by the Trade Tax Authorities not to challenge order passed by the Tribunal. In these circumstances, we are of the considered view that the case is required to be remanded back to the AO to decide afresh after providing adequate opportunity of being heard to the assessee. Consequently, the appeal filed by the Revenue is allowed for statistical purposes. Order pronounced in open court on this 1st day of October, 2019.