ADITYA SHARMA,NEW DELHI vs. ACIT CENTRAL CIRCLE-19, NEW DELHI

Brief facts of the case are that the assessee filed its return of income declaring income of Rs. 11,81,98,120/- under normal provision and Rs. 8,34,41,449/- under MAT provision , on 30.11.2018. The income was determined by CPC at Rs. 13,12,29,210/- u/s 143(1) of the 1961 Act. The case of the assessee was selected by Revenue for framing scrutiny assessment through CASS. Statutory notices u/s 143(2) and 142(1) were issued by the AO during assessment proceedings. The assessee participated in the assessment proceedings . The AO observed that the assessee was incorporated in India with the purpose of trading in automotive car body control module and key less entry system for cars manufactured in India. The AO observed that the assessee has entered into an international transactions with its AE . A reference was made by the AO u/s 92CA(1) of the Act to the TPO on 27.02.2021 through technical unit. The TPO proposed adjustments to ALP to the tune of Rs. 22,10,27,219/- vide orders dated 28.07.2021 u/s 92CA(3) on royalty payments made by the assessee. The AO passed draft assessment order dated 23.09.2021 u/s 144C read with Section 143(3) of the 1961 Act by proposing additions to the tune of Rs. 22,10,27,219/- as were proposed by ld. TPO u/s 92CA(3). The assessee submitted before the AO that it contemplate to file an appeal with ld. CIT(A) against final assessment order of the AO , instead of filing objections with ld. DRP. The ld. AO passed final assessment order dated 26.11.2021 u/s 143(3) r.w.s. 144C(3) r.w.s. 144B of the 1961 Act, wherein income of the assessee was assessed at Rs. 35,22,56,429/- as against income assessed at Rs. 13,12,29,210/- by ld. CPC u/s 143(1) of the 1961 Act, thereby making only addition to the tune of Rs. 22,10,27,219/- as was proposed by ld. TPO u/s 92CA(3) towards determination of ALP of Royalty payments made by the assessee to its AE.

Aggrieved, the assessee filed first appeal with ld. CIT(Appeals) raising as many as six grounds of appeal. The assessee not only raised grounds of appeal concerning the additions towards adjustment made towards ALP determination of Royalty payments as were proposed by TPO , and added by the AO in the final assessment order dated 26.11.2021, but the assessee also challenged the additions as were made by CPC u/s 143(1) in this proceeding before ld. CIT(A) instead of challenging the said additions made by CPC u/s 143(1) by way of separate appeal with ld. CIT(A) . The Ld. CIT(Appeals) issued as many as six notices, but it is stated by ld. CIT(A) in its order that there was no compliance from the assessee to the notices issued by ld. CIT(A). The Ld. CIT(Appeals) dismissed the appeal of the assessee ex-parte in limine without deciding the issues arising in the appeal on merits.

Aggrieved, the assessee filed second appeal with the Tribunal. The ld. Counsel submitted that ld. CIT(A) has not adjudicated the appeal of the assessee on merits. It was submitted that the jurisdictional ld. CIT(A) ought to have adjudicated this appeal, instead of by ld. CIT(A) under faceless adjudication as is done in the instant case as the appeal involves issues concerning Transfer Pricing.It was also submitted that part of ALP adjustment were settled under MAP , and consequently grounds of appeal related to Transfer pricing by way of ALP adjustment to Royalty payments were withdrawn by the assessee vide communication filed by ld. CIT(A) but the said communication was not taken cognizance of by ld. CIT(A). It was also submitted by ld. Counsel for the assessee that submissions were made by the assessee before ld. CIT(A) in response to the notices issued by ld. CIT(A), but ld. CIT(A) erred in holding that no response was filed in pursuance to notices issued by ld. CIT(A). Our attention was drawn to PB/Page 151-192, wherein it is claimed that communications were sent to ld. CIT(A). It was submitted that matter may be restored to the file of ld. CIT(A) for denovo adjudication of the appeal of the assessee . 4.2 Ld. CIT-DR relied upon the order of ld. CIT(Appeals) , and submitted that proper opportunity of head was granted by ld. CIT(A) to the assessee , but the assessee did not responded to notices issued by ld. CIT(A). The ld. CIT-DR fairly submitted that the matter can be restored back to the file of ld. CIT(A) for fresh adjudication on merits in accordance with law, as the ld. CIT(A) has not decided the issues arising in the appeal on merits. It was submitted that the assessee is equally responsible for its woes as the assessee did not comply with any of the six notices issued by ld.CIT(A) during the first appellate proceedings.

1. 5. After hearing both the parties and perusing the material on record, We have observed that the assessee filed its return of income declaring income of Rs. 11,81,98,120/- under normal provisions, and Rs. 8,34,41,449/- under MAT provision on 30.11.2018. The income was determined by CPC at Rs. 13,12,29,210/- u/s 143(1) of the 1961 Act under normal provisions of the Act. The case of the assessee was selected by Revenue for framing scrutiny assessment through CASS. The assessee participated in the assessment proceedings . The assessee is engaged in trading of automotive car body control module and key less entry system for cars manufactured in India. The ld. AO passed final assessment order dated 26.11.2021 u/s 143(3) r.w.s. 144C(3) r.w.s. 144B of the 1961 Act, wherein income of the assessee was assessed at Rs. 35,22,56,429/- as against income assessed at Rs. 13,12,29,210/- u/s 143(1) of the 1961 Act, thereby making only addition to the tune of Rs. 22,10,27,219/- as was proposed by ld. TPO vide orders u/s 92CA(3) towards determination of ALP of Royalty payments made by the assessee to its AE .The assessee filed first appeal with ld. CIT(A), wherein the assessee challenged the addition as were made by the ld. AO in the assessment order dated 26.11.2021 u/s 143(3) r.w.s. 144C(3) r.w.s. 144B of the Act. It is observed that the assessee has also challenged the additions as were made by CPC u/s 143(1) in the aforesaid appeal filed with ld. CIT(A) instead of filing separate appeal with ld. CIT(A). The assessee has claimed to have filed submissions in response to the notices issued by ld. CIT(A). It is also observed that the ld. CIT(A) dismissed the appeal of the assessee ex-parte in limine without deciding the issues arising in the appeal on merits. The ld. CIT(A) issued as many six notices as stated in appellate order but it is held by ld. CIT(A) that there was no compliance by the assessee. The ld. CIT(A) simply dismissed the appeal of the assessee by a non- speaking cryptic order without deciding the issues arising in the appeal on merits, mainly on account of non compliance by the assessee to the six notices issued by ld. CIT(A). We have observed that the ld. CIT(Appeals) has not decided the appeal on merits, and the appeal of the assessee was dismissed ex-parte in limine without deciding the issues arising in the first appeal on merit in accordance with law by simply dismissing the appeal of the assessee, mainly on the grounds of non-compliance by the assessee to the notices issued by ld. CIT(A). The appellate order passed by ld. CIT(A) as reproduced above is a non speaking cryptic order passed ex-parte in limine without deciding the issue arising in the appeal on merits. The ld. CIT(A) is required and obligated to pass appellate order in compliance with the provisions of section 250(6), as ld. CIT(A) is required to pass reasoned and speaking order on merits in accordance with law. Reference is drawn to provisions of Section 250(6), wherein ld. CIT(A) has to state point for determination, his decision and reasons thereof. No enquiry was made by ld. CIT(A). Even whether the appeal before ld. CIT(A) is maintainable or not wrt additions made by CPC u/s 143(1) as the said additions were clubbed together with the additions as were made by the AO in final assessment order u/s 143(3) read with Section 144C(3) and read with Section 144B of the 1961 Act, is not adjudicated by ld. CIT(A). Even assessment records were not called for by ld. CIT(A). No enquiry was made by ld. CIT(A). Reference is drawn to provisions of Section 250(4).The appellate order passed by ld. CIT(A) is subject to further appeal with ITAT u/s 253. The appellate order passed by ITAT is subject to further appeal before Hon’ble High Court u/s 260A. The judgment and order passed by Hon’ble High Court is also subject to challenge before Hon’ble Supreme Court. Thus, the appellate order passed by ld. CIT(A) is not a final order, as it is subject to challenge before higher appellate authority. Thus, Reasons which weighed in the minds of the adjudicating authority while adjudicating appeal on merits of the issues are cardinal as the higher appellate authority can then adjudicate appeal on the issues arising in appeal before them, based on decision and reasoning of ld. CIT(A) in deciding the issues. If the ld. CIT(A) simply dismiss the appeal merely because the assessee did not comply with the notices issued by ld. CIT(A), in limine without adjudicating issues arising in the appeal on merits , such order is not sustainable in the eyes of law keeping in view provisions of Section 250(6) , and also higher appellate authorities will be deprived to see what weighed in the mind of the ld. CIT(A) while adjudicating appeal as it will be an order passed without reasoning on the issues on merits . The appellate order of the CIT(A) is clearly in violation of section 250(6) of the Act and liable to be set aside. Merely stating the appeal of the assessee is dismissed because the assessee has not submitted details/documents is not sufficient. The ld. CIT(A) is not toothless as his powers are co- terminus with the powers of the AO, which even includes power of enhancement. Rather,the assessee has submitted that it duly complied with notices issued by ld. CIT(A). It is a disputed fact. It is also claimed by the assessee that ALP adjustment as proposed by ld. TPO and added by the AO to the income of the assessee , is now resolved under MAP, and order was forwarded to ld. CIT(A) but the cognizance of the same was not taken by the ld. CIT(A). Keeping in view the entire factual matrix as culled out above in the preceding para’s of this order, it will be fair to both the parties as well in the interest of justice, that the appellate order of ld. CIT(Appeals) be set aside and the matter be remanded back to the file of ld. CIT(Appeals) for fresh adjudication after giving proper opportunity of being heard to both the parties w.r.t. the issues arising in the appeal .The assessee is directed to comply with the notice issued by ld. CIT(Appeals) during the appellate proceedings in set aside remand proceedings, otherwise ld. CIT(A) shall be free to decide the appeal ex-parte on merits in accordance with law, after complying with provisions of Section 250(6). We clarify that we have not commented on merits of the issues arising in the appeal . All the contentions and issues are kept open.Thus, the appellate order passed by ld. CIT(A) is set aside and matter is restored back to the file of ld. CIT(A) for fresh adjudication. It is directed that the grievance of the assessee that the jurisdiction to adjudicate first appeal in the instant case lies with jurisdictional CIT(A), instead of CIT(A) under faceless regime as the appeal involves TP issues, be looked into. The assessee has relied upon the letter dated 02.12.2020 of ld. CIT(NFAC), Delhi to that effect , which is enclosed at page 159/PB. Thus, the appeal of the assessee is allowed for statistical purposes.We order accordingly.