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Income Tax Appellate Tribunal, ‘B’ BENCH, BENGALURU
O R D E R
Per PAVAN KUMAR GADALE, JM:
The assessee has filed appeal against the order of the CIT(A)-3, Bangalore, passed u/s 143(3) and 250 of the Income-tax Act,1961 [‘the Act’ for short].
2. The assessee has raised the following grounds of appeal:
“The order of the authorities below in so far as it 1. is against the Appellant is opposed to law, weight of evidence, probabilities, facts and circumstances of the Appellant's case.
Page 2 of 6 The appellant denies itself liable to be assessed on 2. a total loss of Rs. 1,50,520/-determined by the learned assessing officer and confirmed by the learned Commissioner of Income-tax [Appeals], as against the declared loss of Rs. 1,65,56,808/- by the appellant, on the facts and circumstances of the case of the appellant. The ex-parte order passed by the learned 3. Commissioner of Income-tax [Appeals] is bad in law as the appellant was not afforded a reasonable opportunity of hearing, which is in grave violation of principles of natural justice on the facts and circumstances of the case. The learned Commissioner of Income-tax 4. [Appeals] failed to appreciate that the learned assessing officer was not justified in disallowing the entire claim of genuine business expenditure amounting to Rs. 1,64,06,288/-, on the facts and circumstances of the case. The learned Commissioner of Income-tax 5. [Appeals] erred in confirming the erroneous conclusion of the learned assessing officer that the since the appellant has not derived any business income from the business activity and the expenditure claimed does not pertain to the business activity carried on by the appellant is contrary to the facts and settled position of law, on the facts and circumstances of the case. The learned Commissioner of Income-tax 6. [Appeals] is not justified in confirming the following disallowances made by the learned assessing officer on the facts and circumstances of the case. i. Administration & General Expenses- Rs.12,08,880/- ii. Deprecation … Rs. 1,45,92,681/- iii. Finance Charges … Rs. 59,97,010/- iv. Differed revenue Expenditure written Off … Rs. 5,83,043/ v. Preliminary Expenses Written Off … Rs.16,136/- The learned Commissioner of Income-tax 7. [Appeals] failed to appreciate that for claiming business expenditure there is no requirement for Page 3 of 6 any business receipt as per the scheme of the Act on the facts and circumstances of the case. Further the learned authorities below failed to appreciate that the expenditures claimed by the appellant are all for the purposes of business and are allowable business expenditure as per the scheme of the Act on the facts and circumstances of the case. The Appellant craves leave of this Hon'ble 8. Tribunal, to add, alter, modify, delete or substitute any of the grounds urged above.
In the view of the above and other grounds that may be urged at the time of the hearing of the appeal, the Appellant prays that the appeal may be allowed in the interest of justice and equity.”
We found there is a delay of 12 days in filing of appeal before the Tribunal and the assessee has filed condonation petition. On perusal, we found the delay is due to reasonable cause explained in the petition. The learned DR has no serious objection. Accordingly, we condone the delay and admit the appeal.
Before us, the learned AR submitted that the CIT(A) has passed the order without affording an opportunity of hearing. We found that the assessee has not appeared in the appellate proceedings though the case was fixed on 18/1/2016, 25/1/2016, 9/2/2016, 17/1/2017, 27/1/2017, 10/11/2017. However, on 13/11/2017, director of the assessee-company sought an adjournment and the case was posted on 23/11/2017. On said date none appeared, whereas
Page 4 of 6 the CIT(A), considering the material on record has adjudicated the grounds and dismissed the assessee’s appeal. Aggrieved by the order, the assessee preferred an appeal before the Tribunal. Further, learned AR submitted that the assessee could not appear for various reasons and therefore, prayed for one more opportunity before the CIT(A). Contra, the Ld. DR has highly objected to the submissions that the assessee was provided adequate opportunities as per the observations of the CIT(A) at para 3.0 of the order.
We heard the rival submissions and perused the material on record. We found strength in the submissions of the learned DR. The CIT(A) has granted sufficient opportunities. When a query was raised to the learned AR being the Reasonable cause and Reasons for non-appearance, the explanations of learned AR are not satisfactory and are not supported with any evidence. We, considering the principles of natural justice consider it appropriate to restore the entire disputed issue to the file of the CIT(A) for fresh adjudication but considering the facts on record with respect to non-appearance of the assessee-company or learned AR in spite of issuing notices on various dates in appellate proceedings and the assessee-company chose not to appear which cannot be overlooked. Therefore, we are of the Page 5 of 6 substantive opinion that the assessee should be provided an opportunity of hearing but with payment of cost of Rs.5,000/- to the Income-tax Department within a period of one month from the date of receipt of this order. Subject to the payment of above cost, we restore the entire disputed issue to the file of the CIT(A) to consider the matter afresh and adjudicate on merits. Further, the assessee shall submit proof of payment of cost through challan copy with Tribunal and appellate authority. It is nevertheless to mention that the CIT(A) should provide reasonable opportunity to the assessee to file evidences and documents in support of case and assessee shall also cooperate in submitting the information as expeditiously for early disposal of the appeal and we order accordingly.
In the result, the assessee’s appeal is allowed for statistical purposes.