FIVES STEIN INDIA PROJECTS PVT. LTD.,KOLKATA vs. DCIT, CIR.8(1), KOLKATA

आदेश /O R D E R Per Sanjay Garg, Judicial Member:

1. That on the facts and in the circumstances of the case and in law, the Ld. Commissioner of Income Tax (Appeals)­8, Kolkata (hereinafter referred to as "Ld. CIT(A)"] grossly erred in confirming the disallowance made by the AO in the assessment order under section 143(3) of the Income­tax Act, 1961 M/s. Five Stein India Projects (P) Ltd. Page 2 (hereinafter referred to as "Act") dated 31­03­2016 for the relevant assessment year towards commission paid by appellant to M/s. Sunshine Commotrade Pvt. Ltd. (hereinafter referred to as "SCPL") amounting to Rs.8,35,135/­.

without appreciating that, the appellant had not received any notice from the Ld. CIT(A) fixing the hearing on the aforesaid dates and as such, it had no knowledge of any such hearing before the Ld. CIT(A) on the above dates.

3. That on the facts and in the circumstances of the case and in law and without prejudice to Ground No. 1 & 2 above, the Ld. CIT(A) erred in confirming the disallowance of commission paid by appellant to SCPL amounting to Rs.8,35,135/­ on the contention that appellant failed to offer any explanation in support of its grounds of appeal without appreciating that, in the statement of facts filed before CIT(A) the appellant had explained its contention in support of the above claim, including interalia, that the said issue has already been decided in favour of the appellant by the Hon'ble ITAT in its own case for earlier years and as such the same was allowable.

4. That the appellant craves leave to add to and/or amend, alter, modify or rescind the grounds hereinabove before or at the time of hearing of the appeal.

3. This appeal of the assessee is time barred by 115 days. A separate application for condonation of delay has been filed, wherein it has been pleaded that the assessee did not receive any notice of hearing from the of ld. CIT(A) and was not in knowledge of the passing of the impugned order. We find that the impugned order is an ex parte. Considering the submissions given by the assessee, the delay in filing the present appeal is hereby condoned.

4. None has put in appearance on behalf of the assessee. We find that the order of the Ld. CIT(A) is an ex parte order. The plea of the assessee as given in his affidavit is that no notice of hearing was received by the assessee. Even the assessee did not ever receive the copy of the impugned order also. That the assessee came to know about the order only when it was uploaded on the website of the department. Even the ld. CIT(A) has not given his findings on merits of the case rather he has passed a non- speaking order without discussing each of the issues on merits. In view of this, the impugned order of the ld. CIT(A) is set aside and the matter is restored to the file of the ld. CIT(A) with a direction that notice will be sent to the assessee’s correct address

M/s. Five Stein India Projects (P) Ltd. Page 3 and thereafter to decide the issues involved on merits after giving proper and adequate opportunity of hearing to the assessee. In view of our findings above, the appeal of the assessee is treated as allowed for statistical purposes.