M/S. DEESAN AGRO TECH PRIVATE LIMITED ,MUMBAI vs. D.C.I.T. -12(2)(1), MUMBAI

O R D E R

PER RAVISH SOOD, JM

2. The Hon‟ble CIT(A) further erred in making incorrect observation and in particular the following:

P a g e | Deesan Agro Tech Pvt. Ltd. Vs. DCIT-12(2)(1) “Nobody has attended on the dates fixed for hearing. It appears that the appellant is not interested in prosecuting the appeal. Hence, the appeal is decided on the basis of the facts available on record.”

3. During the course of the assessment proceedings, it was observed by the A.O that the assessee had debited an amount of Rs.2,06,27,283/- on account of commission and brokerage expenses. As the assessee could not specifically justify the allowability of the commission expenses on the basis of supporting documentary evidence, therefore, the A.O disallowed 75% of the said expenditure amounting to Rs.1,54,70,462/- (i.e 75% of Rs.2,06,27,283/-). The A.O after making the aforesaid disallowance of commission expenditure assessed the income at Rs.5,26,51,160/-.

4. Aggrieved, the assessee carried the matter in appeal before the CIT(A). It was observed by the CIT(A) that the assessee despite having been put to notice about the hearing of the appeal had failed to appear before him on various occasions. Accordingly, the CIT(A) observing that as the assessee had failed to place on record any submission to dislodge the disallowance of commission expenses of Rs.1,54,70,462/-, P a g e | Deesan Agro Tech Pvt. Ltd. Vs. DCIT-12(2)(1) upheld the same. On the basis of the aforesaid observations the appeal filed by the assessee was dismissed.

5. The assessee being aggrieved with the order of the CIT(A) has carried the mater in appeal before us. The ld. Authorized Representative (for short „A.R‟) for the assessee submitted, that the appeal had been dismissed by the CIT(A) on the basis of an ex-parte order. It was submitted by the ld. A.R that the CIT(A) had erroneously observed that the assessee had neither appeared nor sought any adjournment in the course of the appellate proceedings before him. It was submitted by the ld. A.R, that on the various dates on which the appeal was fixed for hearing before the CIT(A), the assessee had sought adjournments. In order to fortify his aforesaid contention the ld. A.R drew our attention to the order of the CIT(A), wherein the fact that the assessee had sought adjournments on various dates was mentioned. Accordingly, it was submitted by the ld. A.R that the CIT(A) was in error in observing that the assessee had neither attended the proceedings nor sought any adjournment. It was averred by the ld. A.R, that the CIT(A) on the basis of misconceived factual position had dismissed the appeal by way of a non-speaking order. It was submitted by the ld. A.R that in all fairness the matter may be restored to the file of the CIT(A) with a direction to re-adjudicate the same after allowing an opportunity of being heard to the assessee. 6. Per contra, the ld. Departmental Representative (for short „D.R‟) relied on the order of the CIT(A). 7. We have heard the authorized representatives for both the parties, perused the orders of the lower authorities and the material available on record. As is discernible from the order of the CIT(A), it was observed by him that the assessee had neither attended the proceedings before him nor sought any adjournment. However, we find P a g e | Deesan Agro Tech Pvt. Ltd. Vs. DCIT-12(2)(1) that the aforesaid observation of the CIT(A) is clearly in contradiction of his observations recorded at Page 2 – Para 3.2 of his order, which reads as under:

Sr. Date of hearing Whether notice was Remarks whether appellant/AR appeared No. served 1. 18.09.2017 Yes None attended. Adjournment is sought and it is requested that the hearing may be fixed after 3 weeks 2. 09.10.2017 Yes None attended. Adjournment was sought 3. 27.10.2017 Yes None attended. Adjournment is sought On a perusal of the aforesaid observations of the CIT(A), we find that the assessee on all the three occasions viz. 18.09.2017, 09.10.2017 and 27.10.2017 had sought adjournments on the said respective dates. Accordingly, the observation of the CIT(A) that the assessee had neither attended the proceedings nor sought an adjournment are found to be incorrect. Apart there from, we find that the CIT(A) had disposed off the appeal by merely referring to the observations of the A.O and upholding the same. In the backdrop of the aforesaid facts, we are of the considered view that the matter requires to be revisited by the CIT(A). Accordingly, we restore the matter to the file of the CIT(A) for fresh adjudication on merits. Needless to say, the CIT(A) while disposing off the appeal shall afford an opportunity of being heard to the assessee.