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Income Tax Appellate Tribunal, DELHI BENCH ‘A’ : NEW DELHI
Before: SHRI H.S. SIDHU & SHRI PRASHANT MAHARISHI
The Assessee has filed the Appeal against the Order dated 16.1.2019 of the Ld. CIT(A)-2, New Delhi pertaining to assessment year 2013-14 on the following grounds:-
I) On the facts and in the circumstances of the case and also in law the Ld. CIT(A) has erred in dismissing the appeal of the appellant without adjudicating the grounds raised therein on merits.
II) The Ld. CIT(A) and the AO has erred in law and also in facts in not appreciating the fact that the addition of Rs.
1,34,10,000/- @10% of the share security premium pertains to acceptance of share capital including premium for assessment year 2012-13 and no addition for the transactions done in AY 2012-13 can be made in different assessment year which is 2013-14.
III) The orders of the authorities below have been passed without providing reasonable opportunity to present the case before them and whatever opportunity was provided the same could not be availed due to the non-availability of the Director on account of family problems in the native village.
IV) The AO has erred in law and in facts of the case in giving a farfetched finding based on no material that appellant has given wrong data relating to bank account in the return of income whereas the bank account details given in the return of income are correct and AO has made inquiry from the wrong bank to give the above adverse finding which is the basis for making addition under appeal. The above finding need be quashed.
V) The appellant craves leave to add, delete, modify / amend the above grounds of appeal with the permission of the Hon’ble appellate authority.
The facts narrated by the revenue authorities are not disputed by both the parties, hence, the same are not repeated here for the sake of convenience.
At the time of hearing, Ld. Counsel for the assessee stated that Ld. CIT(A) has dismissed the appeal of the assessee without adjudicating the grounds raised therein on merits. He further stated that Ld. CIT(A) as well as AO have not appreciated the fact that the addition of Rs. 1,34,10,000/- @10% of the share security premium pertains to acceptance of share capital including premium for assessment year 2012-13 and no addition for the transactions done in AY 2012-13 can be made in different assessment year which is 2013-14. It was further submitted that the orders of the authorities below have been passed without providing reasonable opportunity to present the case before them and whatever opportunity was provided the same could not be availed due to the non-availability of the Director on account of family problems in the native village. It was further submitted that AO has given wrong finding based on no material that assessee has given wrong data relating to bank account in the return of income whereas the bank account details given in the return of income are correct and AO has made inquiry from the wrong bank to give the above adverse finding which is the basis for making addition under appeal. In view of above, he requested that the issues in dispute may be set aside to the file of the AO for fresh adjudication, after giving adequate opportunity of being heard to the assessee.
On the contrary, Ld. DR relied upon the order of the authorities below.
We have heard both the parties and perused the records especially the orders of the authorities below. We find that both the lower authorities have passed the exparte orders, which in our opinion is not in accordance with the principles of natural justice and it is an erroneous approach. We are also of the view that there is no doubt that assessee remained non-cooperative before the lower authorities. We find considerable cogency in the contention of the Ld. Counsel for the assessee that the orders of the authorities below have been passed without providing reasonable opportunity to present the case before them and whatever opportunity was provided the same could not be availed due to the non-availability of the Director on account of family problems in the native village, hence, in our opinion, the issues in dispute needs to be adjudicated by the AO afresh, keeping in mind the aforesaid contention of the Ld. Counsel for the assessee and give adequate opportunity of being heard to the assessee.
5.1 In the background of the aforesaid discussions and in the interest of justice, we remit back the issues in dispute to the file of the Assessing Officer to decide the same afresh, after giving adequate opportunity of being heard to the assessee and pass a speaking order, after considering each and every aspect of the issue in dispute and also consider the contention of the Ld. Counsel for the assessee as well as the documents/ evidences, if any. The Assessee is also directed through his counsel to appear before the Assessing Officer on 22.07.2019 at 10.00 AM for hearing and did not take any unnecessary adjournment and file the necessary documents/evidence before the AO to substantiate its case. Since the date of hearing before the AO has already been informed, there is no need to send the notice to the assessee.
In the result, the Assessee’s Appeal is allowed for statistical purposes.