BHIKSHU MARGAM,PUNE vs. DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE - 2, PUNE

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ITA 2826/PUN/2017Status: DisposedITAT Pune28 November 2018AY 2012-134 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal found that the CIT(A)'s order was passed without the assessee's presence and that notices were sent to an incorrect address. Therefore, the issue of denial of opportunity by the CIT(A) was allowed in favor of the assessee.

What were the facts?

The assessee's appeal was dismissed by the CIT(A) due to non-appearance and an inability to locate the assessee's address. The assessee claims this dismissal violated principles of natural justice as they were not given an opportunity to represent their case.

What were the issues?

Whether the CIT(A) erred in dismissing the appeal without providing the appellant an opportunity to be heard and present evidence, and whether the disallowances made by the AO were justified.

Which sections of the Income-tax Act were involved?

Section 40A(3),Section 40(a)(ia),Section 37(1)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, PUNE BENCH “SMC”, PUNE

Before: SHRI D. KARUNAKARA RAO, AM

For Respondent: Shri Rajesh Gawali
Hearing: 01.11.2018Pronounced: 28.11.2018

आदेश/ ORDER

PER D. KARUNAKARA RAO, AM :

This appeal is filed by the assessee against the order of CIT(A)-13, Pune dated 27.09.2017 for the Assessment Year 2012-13.

2.

None appeared on behalf of the assessee despite the service of the notice. Therefore, considering the smallness of the issue and the tax involved therein, this appeal is being decided on the basis of material available on record and after hearing the ld. DR.

3.

The grounds raised by the assessee are extracted hereunder :- “On the facts and circumstances of the case and in law :

ITA No.2826/PUN/2017

1.

The CIT(A) erred in dismissing the appeal on grounds that the appellant’s address could not be located and by concluding that the appellant was not interested in prosecuting its appeal. The appeal has been dismissed without providing the appellant an opportunity to represent the appeal and without hearing the appellant. The appellant pleads that the order of the CIT(A) is against the principles of natural justice and is not valid. 2. The Hon. CIT(A) erred in confirming the disallowances made by the AO on grounds that the assessee had not furnished any submissions or evidence before the CIT(A) in support of its grounds of appeal. The appellant pleads that it was denied opportunity to make submissions and furnish evidence in support of its appeal and that the order passed by the CIT(A) dismissing the appeal is erroneous, against principles of natural justice and is invalid. 3. The AO erred in disallowing Rs.21,000/- u/s 40A(3) of the IT Act on grounds that the subject payment is in violation of provisions of section 40A(3) and is not allowable. The appellant pleads that the subject payment was a genuine business transaction made for carrying out urgent repairs at its factory and is allowable. 4. The AO erred in disallowing interest of Rs.3,492/- on late payment of TDS on ground that the same is not allowable under section 37(1) of the IT Act. The appellant pleads that the payment of interest is compensatory in nature and is allowable in computation of profits of business. 5. The AO erred in disallowing u/s 40(a)(ia) Rs.5,40,513/- reimbursed to the assessee’s agents on account of clearing and crane hire charges on grounds that tax was not deducted at source by the assessee. The appellant pleads that the disallowance made by the AO is not justified. 6. The appellant craves leave to add to, alter, amend, modify or withdraw 6. The appellant craves leave to add to, alter, amend, modify or withdraw any or all grounds of appeal.”

4.

Briefly stated relevant facts include that the assessee is a firm and is

engaged in the business of manufacture and dealer of Marble, Granite and

Stone etc. Assessee filed the return of income on 29.09.2012 declaring

total income at Nil. The current year loss is (-) Rs.38,14,754/-. At the end

of the assessment, the Assessing Officer made couple of additions invoking

the provisions of section 40A(3), section 40(a)(ia) r.w. the TDS provisions of

the Statute. The CIT(A) confirmed the said additions made by the

Assessing Officer. However, I find the order made by the CIT(A) is without

having presence of the assessee or its Authorized Representative.

5.

Aggrieved with such order of the CIT(A), the assessee is in appeal

before me with the grounds extracted above.

-3- ITA No.2826/PUN/2017

6.

As evident from the above, nobody appeared before the CIT(A) and

also before me. I find this appeal can be disposed of considering the issue

raised in ground no.2 relating to denial of opportunity by the CIT(A) to

furnish written submissions as well as furnish the evidences in support of

the case of the assessee. In this regard, ld. DR for the Revenue narrated

the facts relating to the service of notice and reasons for non-compliance by

the assessee to the said notice. The ld. DR fairly submitted that the

address given in the order of the Assessing Officer and the CIT(A) is totally

different from the address given by the assessee in Form No.36 (Column

No.10). According to him, the notices issued by the CIT(A) went to the

address given at Shivaji Nagar, Pune as the assessee already shifted from

that place to new place located at Mula Road, Kirkee, Pune.

7.

Without going to the merits of the case, the preliminary issue relating

to the service of notice, in my opinion, the impugned issue raised in ground

no.2 is required to be allowed in favour of the assessee. This is a fit case

for remanding to the file of the CIT(A) for fresh adjudication after sending

proper notices to the newly available address given by the assessee, which

is follows : Bhikshu Margam, A102, Kohinoor Estate, Mula Road,

Kirkee, Pune-411003.

8.

Accordingly, ground no.2 raised by the assessee is allowed for

statistical purposes.

9.

Considering the relief granted by me in ground no.2, in my opinion,

adjudication of the other grounds become academic in nature at this point

of time.

-4- ITA No.2826/PUN/2017

10.

In the result, the appeal of the assessee is partly allowed for statistical purposes.

Order pronounced on this 28th day of November, 2018.

Sd/- (D. KARUNAKARA RAO) लेखासद�य/ ACCOUNTANT MEMBER पुणे/ Pune; �दनांकDated : 28th November, 2018. Sujeet आदेशक���त�ल�पअ�े�षत/Copy of the Order is forwarded to : अपीलाथ�/ The Appellant; 1. ��यथ�/ The Respondent; 2. 3. The CIT(A)-13, Pune; 4. The CCIT (International Taxation), West Zone, Mumbai; �वभागीय��त�न�ध, आयकरअपील�यअ�धकरण, पुणे“एक-सद�यमामला” / 5. DR ‘SMC’, ITAT, Pune; गाड�फाईल/ Guard file. गाड�फाईल/ Guard file. 6. 6.

// True Copy // आदेशानुसार/ BY ORDER, स�या�पत ��त//True Copy//

Senior Private Secretary आयकरअपील�यअ�धकरण ,पुणे/ ITAT, Pune

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