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Income Tax Appellate Tribunal, DELHI BENCH ‘FRIDAY’, NEW DELHI.
Before: HON’BLE, SHRI G.D. AGRAWAL & SHRI KULDIP SINGH
(PAN : AACCN2518B) (APPELLANT) (RESPONDENT) ASSESSEE BY : Shri Lalit Mohan, CA REVENUE BY : Ms. Rinku Singh, Senior DR Date of Hearing : 01.02.2019 Date of Order : 25.02.2019
O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : Keeping in view the facts inter alia that the ld. CIT (A) has passed the impugned order ex parte due to non appearance of the assessee without going into the merits of this case and that adequate opportunity of being heard is required to be provided to the assessee, the application for early hearing is hereby allowed and Bench is proceeded to hear the appeal by today itself.
The appellant, M/s. Niftys Technologies Pvt. Ltd. (hereinafter referred to as ‘the assessee’) by filing the present appeal, sought to set aside the impugned order dated 18.08.2017 passed by Ld. CIT (Appeals)-37, New Delhi qua the Assessment Year 2008-09 on the grounds inter alia that :-
“1. That order dated 18.8.2017 passed by the learned Commissioner of Income Tax (Appeals)-XXXVII, New Delhi upholding the order of assessment dated 23.3.2016 under section 147/143(3) of the Act dismissing the appeal preferred by the appellant ex-parte without granting any fair, meaningful and proper opportunity is contrary to the principles of natural justice and otherwise vitiated.
2. That the learned Commissioner of Income Tax (Appeals) having noticed that notice had not been served on the appellant, ought to have been served the notice through the Assessing Officer or at the address stated in the order of assessment, particularly when the appellant had duly complied with during the assessment proceedings and therefore, the ex-parte order is a vitiated order.
That furthermore inadvertent typographical errors in Form No. 35 could not in law be a ground to deny substantive justice to the appellant company.
That also the alleged defect in verification column in Form 35 terms of section 140 of the Act read with section 249 of the Act is a technical and a procedural defect and therefore, could not be a ground to hold that the appellant had consciously omitted to cure the defect despite having multiple opportunities and conclude that the appeal is defective and not admitted in view of said uncured defect.
5. That further, the learned Commissioner of Income Tax (Appeals) has erred both in law and on facts in upholding initiation of proceedings under section 147 of the Act and completion of assessment under section 147/143(3) of the Act without satisfying the statutory pre-conditions under the Act and as such, both the initiation of the proceedings and completion of assessment are without jurisdiction and thus, deserve to be quashed as such.
That further, the learned Commissioner of Income Tax (Appeals) has erred both in law and on facts in sustaining aggregate addition or Rs.75,00,000/- representing sum received from M/s Taurus Iron & Steel Co. (P) Ltd. (now known as M/s Octopus Ispat (P) Ltd.) and erroneously held as unexplained cash credits under section 68 of the Act.
That the learned Commissioner of Income Tax (Appeals) has erred both in law and on facts in sustaining addition of Rs.1,50,000/- on account of alleged commission paid to the entry provider in cash for obtaining accommodation entries and held as unexplained expenditure u/s 69C of the Act.
That the learned Commissioner of Income Tax (Appeals) has erred both in law and on facts in sustaining levy of interest of Rs.22,51,823/- u/s 234B of the Act which is not leviable on the facts of the instant case.
It is therefore prayed that, it be held that conclusion of learned Commissioner of Income Tax (Appeals) that appeal is not admitted since the Form No. 35 verification portion is not in consonance with provisions of section 140 read with applicable rules (Rule 45) relating to section 249 of the Act and is to be dismissed be held to be invalid, arbitrary and untenable. It is further prayed that order disposing of the appeal ex parte alongwith interest levied may kindly be set aside and appeal of the appellant company be allowed.”
3. Briefly stated the facts necessary for adjudication of the controversy at hand are : Assessing officer completed the assessment under section 143 (3)/147 of the Income-tax Act, 1961 (for short ‘the Act’) by making addition of Rs.75,00,000/- and Rs.1,50,000/- on account of unexplained credit under section 68 of the Act and unexplained expenditure respectively.
4. Assessee carried the matter before the ld. CIT (A) by way of an appeal who has proceeded to decide the appeal ex parte on the ground that notice dated 19.05.2017 issued to the assessee for hearing on 30.05.2017 and subsequent notices received back unclaimed and thereby dismissed the same on ground of maintainability. Feeling aggrieved, the assessee has come up before the Tribunal by way of filing the present appeal.
We have heard the ld. Authorized Representatives of the parties 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.
6. Bare perusal of the impugned order passed by the ld. CIT (A) goes to prove that numerous notices to procure the presence of the assessee were issued but it is not brought on record if the said notices were ever served upon the assessee or he has refused to accept the notice rather notice received back with report unclaimed/attempted delivery. We are of the considered view that to decide the issue in controversy once for all, adequate opportunity is required to be given to the assessee, by effecting proper service, impugned order passed by the ld. CIT(A) is set aside and remanded back to ld. CIT (A) to decide afresh after providing an opportunity of being heard to the assessee. Consequently, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in open court on this 25th day of February, 2019.