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PER PAWAN SINGH, JUDICIAL MEMBER;
This appeal by assessee under Section 253 of Income-tax Act is directed against the order of ld. CIT(A)-37, Mumbai dated 18.10.2016 for Assessment Year 2011-12. The assessee has raised the following grounds of appeal:
YOUR APPELLANT CRAVES LEAVE TO RAISE FOLLOWING GROUNDS OF APPEAL WITHOUT PREJUDICE TO ONE ANOTHER & THEREFORE, YOUR APPELLANT PRAYS THAT THEY MAY BE DECIDED INDEPENDENTLY.
1. The Ld. CIT (A) for the reasons best known to him has passed his order dismissing the appeal filed by the appellant arbitrarily, capriciously and bad in law and on facts of the case to the extent of making addition without giving opportunity of hearing before Ld. CIT(A) during appellate proceedings on 04/10/2016. 2. a) On the facts and in the circumstances and in law and in the interest of natural justice the Ld. CIT (A) has erred in stating on Para 2.5 of his order that there was no attendance on hearing fixed on 04-10-2016 against this allegation, Mum 2017-M/s Vidyasagar B. Wahi (HUF) the appellant states that letter dated 27-09-2016 was written by appellant for adjournment by speed post. b) Since no opportunity was given for appearance before CIT (A) on 04·10·2016 question of filing any submission to support claim made in the grounds of appeal does not arises. c) The learned CIT (A) has further erred in confirming the disallowance made by the assessing officer and therefore grounds of appeal raised by the appellant for hearing of appeal are disl1issed.
Alternately the learned CIT (A) should have appreciated following grounds of appeal filed by the appellant before dismissing the appellate order dated 18/10/2016.
3. Disallowance of expenses u/s 37(1) of the Act, of Rs.6,93,761/· On the facts and in the circumstances and in law and in the interest of natural justice the Ld. CIT(A) erred in disallowance of above expenses although the appellant has himself disallowed of Rs.11, 11,315/- out of expenses of Rs.18,05,076/-.
4. Income from house property of Rs.31,75,200/· On the facts and in the circumstances and in law and in the interest of natural justice the Ld. CIT(A) has erred in not examining writing statement evidence produced during the assessment proceedings.
5. Disallowance u/s 68 of Rs.7,22,946/- unexplained credit
On the facts and in the circumstances and in law and in the interest of natural justice the Ld. CIT(A) erred in making above disallowance although complete details stated in the grounds of appeal
6. Liability written back u/s 41(1) of Rs.1,54,898/- On the facts and in the circumstances and in law and in the interest of natural justice the Ld. CIT(A) has erred making above additions although the appellant stated all details of sundry creditors with age, address and confirmation of all disputed creditors stated in the grounds of appeal.
7. Disallowance of interest u/s 36(1)(iii) of the Act, of Rs. 8274/- On the facts and in the circumstances and in law and in the interest of natural justice the Ld. CIT (A) erred in making above disallowance although all loan confirmation and with interest paid plus TDS challans were stated in the grounds of appeal.
8. Difference in AIR and ITR of Rs.7,86,796/- Mum 2017-M/s Vidyasagar B. Wahi (HUF)
On the facts and in the circumstances and in law and in the interest of natural justice the Ld. CIT (A) erred in making above addition although details of interest on securities from HDFC Bank Ltd. were credited and stated in the grounds of appeal
9. PRAYERS (i) On the facts and circumstances of the case the appellant submits that the order passed by CIT(A) is bad in law as the said order is passed against the principles of natural justice; (ii) The appellate order as made on assumption basis is not based on facts and is bad in law. The impugned additives may pleased be deleted. (iii) The appellant further craves leave to add, alter or amend his Grounds of Appeal during the course of appeal.
2. Brief facts of the case are that the assessee is a Hindu Undivided Family (HUF) and proprietor of M/s Sai Trader, filed its return of income for Assessment Year 2011-12 on 26.03.2013 declaring total income at Rs. 57,60,095/-. The return of income was selected for scrutiny. The assessment was completed under section 143(3) of the Act on 14.03.2014. The Assessing Officer while passing the assessment order besides other additions/ disallwnce made the disallowance of expenses under section 37(1) of Rs. 6,93,761/-, addition of Income from House Property of Rs. 31,75,200/-, disallowance under section 68 of Rs. 7,22,946/- disallowed Rs. 1,54,898/- under section 41(1), disallowance under section 36(1)(iii) of Rs. 8,274/- and addition on account of difference of AIR of Rs. 7,86,796/-. On appeal before the ld. CIT(A), all the action of Assessing Officer was confirmed. Thus, further aggrieved by the order of ld. CIT(A), the assessee filed the present appeal before us.
We have heard the submission of ld. Authorized Representative (AR) of the assessee and ld. Departmental Representative (DR) for the Revenue and 3 Mum 2017-M/s Vidyasagar B. Wahi (HUF) perused the material available on record. At the outset of hearing, the ld. AR of the assessee submits that the ld. CIT(A) passed the order ex-parte and without giving sufficient opportunity to the assessee. The ld. AR of the assessee submits that during the first appellate stage, the assessee made written request for adjournment of the appeal for valid reasons, however, the ld. CIT(A) passed the order in defiance of Principle of Natural Justice and passed ex-party order. The ld. AR of the assessee prayed for restoring the appeal to the file of ld. CIT(A) for decision on merit.
On the other hand, the ld. DR for the Revenue supported the order of lower authorities. The ld. DR vehemently submits that the assessee failed to provide necessary information to the Assessing Officer as well as not attended the date of hearing before the ld. CIT(A). Therefore, the assessee is not entitled for any relief. 5. We have considered the submission of both the parties and have gone through the order of ld. CIT(A). We have noted that the ld. CIT(A) passed the order ex-parte and confirmed all the addition made by Assessing Officer. Though, the ld AR for the assessee submitted that the assessee sought adjournment of appeal for valid reasons, we instead of going into controversy as to the assessee sought adjournment for valid reasons or not attended the appeal proceeding without any valid reasons, facts remains the same that ld. CIT(A) passed the ex-parte order. Therefore, keeping in view, the Principle of Natural Justice the appeal of the assessee is restored back to 4 ITA No. 3428 Mum 2017-M/s Vidyasagar B. Wahi (HUF) the file of ld. CIT(A) with the directions to decide all the grounds of appeal on merit. It is made clear that the assessee shall fully co-operate and provide all necessary details and evidence to the ld CIT(A) and would not seek adjournment without any valid reasons. Needless to order that the ld. CIT(A) shall pass the order in accordance with law after giving fair opportunity to the assessee.
In the result, appeal of the assessee is allowed for statistical purpose.
Order pronounced in the open court on 15/10/2018.