VIKAS SHARMA,NEW DELHI vs. ACIT CIRCLE-45(1), NEW DELHI

This stay petition number 369/Del/2019 is filed by the assessee in ITA number 2211/del/2019 for assessment year 2014 – 15 for stay of outstanding demand of INR 7333864+ interest thereon making the total outstanding demand of Rs. 11959980/-. Against the above demand income tax Department has recovered INR 4626116/- from the bank account of the assessee on various dates. Therefore for the balance sum the assessee has requested for stay of demand.

In the stay petition the fact shows that the assessee is an individual who filed his return of income on 30/9/2014 declaring income of INR 1589760/– . The assessment u/s 143 (3) was made by the learned assessing officer wherein an addition of INR 24576311/- was made on account of trade creditors under section 68 of the income tax act. On appeal before the learned CIT – A the above addition was confirmed. Therefore the assessee has filed an appeal before the coordinate bench and also the stay petition.

The only argument of the learned authorised representative was that the addition has been made are to the income of the assessee which is almost Page | 1 16 times of the returned income without invoking the provisions of section 145 of the income tax act. He stated that in such a situation the tax demand should be kept in abeyance for recovery. He further submitted that assessee has already paid almost 40% of the demand and therefore it deserves the stay for the balance sum.

The learned departmental representative vehemently submitted that the assessee is a non-cooperative assessee who did not appear before the lower authorities and did not cooperate in the assessment as well as appellate proceedings and therefore he does not deserve a stay.

We have carefully considered the rival contentions and found that the assessee was assessed at INR 27766070/- against the returned income of INR 1 589760 by the learned assessing officer by making usual addition of INR 26,176,311/-on 29/12/2016. The assessee preferred an appeal before the learned CIT – A who dismissed the appeal of the assessee as on 7 occasions the notices were issued to the assessee but he did not appear on he requested for adjournment. Therefore the assessee has preferred an appeal before us. On perusal of the conduct of the assessee before the learned CIT – A wherein on 7 occasions he did not remain present before him in spite of the assessee paying almost 40% of the tax demand he does not deserve the stay. Hence to petition filed by the assessee is dismissed.

However on looking at the facts and circumstances of the case it is apparent that the learned CIT – A has dismissed the appeal of the assessee for nonprosecution but not on the merits. Therefore it is imperative that the issue has to be decided on the merits of the case even if the assessee does not remain present before him.

At the request of both the parties the matter was heard. The learned departmental representative as well as the learned authorised representative requested for the matter to be set aside to the file of the learned lower authorities so that the assessee can represent his case.

We have carefully considered the rival contention as well as perused the orders of the lower authorities. As the learned CIT – A has not decided the issue on the merits of the case we set aside the whole issue back to the file of the learned CIT – A with a direction to the assessee to remain present before him on 14/5/2019 and is make his submission before him. The