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Income Tax Appellate Tribunal, “H”, BENCH MUMBAI
आदेश / O R D E R PER SANDEEP GOSAIN (J.M): This appeal filed by the assessee against the order of CIT(A)-10, Mumbai dated 15.03.2017 for A.Y.2012-13 which in itself arises from the order passed by the A.O under Sec. 144 of the Income Tax Act, 1961 (for short ‘Act’) dated 25.03.2015. 2. Grounds of appeal: “1. (a) The Ld. CIT(A) has erred in dismissing the appeal as not maintainable without considering the facts and circumstances of the case, thus making the order bad in law. (b) The Ld. CIT(A) has erred in passing an ex-parte order stating that there was no compliance/ response from the assessee without considering the letters filed before him and the personal attendance made by the AR. Therefore, order passed is bad in law and needs to be quashed. (C) The Ld. CIT (A) erred in passing an ex-parte Order without considering the following communications made by the Authorised Representative and the assessee:
P a g e | Hetu Investment & Trading Ltd. Vs. Income Tax Officer, Ward-5(1)(4) Sr. No. Letter dated Letter filed on Remarks 1. 10.03.2017 10.03.2017 Seeking an Adjournment for hearing fixed on 14.03.2017 2. 21.03.2017 23.03.2017 Suo-Moto seeking an Adjournment. 3. 30.03.2017 30.03.2017 Suo-Moto meeting the Hon. CIT(A) personally informing Hon. CIT(A) that the details have been received and seeking a short adjournment. 4. 31.03.2017 31.03.2017 Suo- Moto filed a detailed written submission (d) The Ld. CIT (A) erred in passing an ex parte Order without considering the detailed submission filed on 31/03/2017. Therefore, order passed is bad in law and needs to be quashed. e) The Ld. CIT (A) has erred in passing an ex parte Order without issuing any show Cause notice giving an opportunity of being heard and asking to cause why the appeal should not be dismissed. Therefore, order passed is bad in law and needs to be quashed. (f) The Ld. CIT (A) has erred in stating the Date of Order as 15/03/2017 whereas the Order was dispatched by the Ld. CIT (A) on 02/05/2017 and received by the assessee on 04/05/2017. Therefore, making Order backdated is had in law.
Without prejudice to the ground no. 1, the Ld. CIT (A) erred in confirming the addition of Rs. 20,00,000/- as unexplained cash credit u/s. 68 of the Income Tax Act, 1961 without considering the facts and circumstances of the case. The same be allowed.
Without prejudice to the ground no. 1, the Ld. CIT (A) erred in confirming the addition of Rs. 1,15,67,797/- as undisclosed gross profit without considering the facts and circumstances of the case. The same be allowed.
Without prejudice to the ground no. 1, the Ld. CIT (A) erred in confirming the disallowance of Rs. 7,53,150/- u/s. 14A of the Act r.w. Rule 8D without considering the facts and circumstances of the case. The same be allowed.
5. The assessee craves leave to add, alter, amend or delete the grounds of appeal
at the time of or before the hearing.”
3. Brief facts of the case that the assessee is engaged in the business of dealing textiles and general trading. It furnished its return of income for the year under consideration on 29.09.2012 declaring total income of Rs. 34,64, 50/- notice under Sec. 143(2) of the Income tax Act were served upon the assessee. The AO completing assessment under Sec. 144 of the Income tax Act determining total income of Rs.1,77,85,447/- on 21.03.2015 by making several disallowance.
P a g e | Hetu Investment & Trading Ltd. Vs. Income Tax Officer, Ward-5(1)(4) 4. Aggrieved by the order of the A.O assessee preferred appeal before ld. CIT(A) and the ld. CIT(A) after considering the case of both the parties, decided the appeal ex-parte on 15.03.2017. Against this order the assessee preferred present appeal before us on the grounds mentioned hereinabove. Ground 1 (A to F)
All the grounds raised by the assessee are interrelated and interconnected and relates to challenging the order of the ld. CIT(A) in passing ex-parte order dated 15.03.2017 therefore we thought it fit to dispose off these grounds by the present consolidate order.
The ld. A.R submitted before us that in the order passed by ld. CIT(A) is bad in law as the Ld. CIT(A) has not provided due opportunity of hearing to the assessee. It was also submitted that an application for seeking adjournment was filed by the assessee on 10th March, 2017 thereby seeking 20-25 days time for contesting the case before the Ld. CIT(A). However, the Ld. CIT(A) proceeded the assessee ex-parte on 14.03.2016 and passed the impugned order on 15.03.2017. It was also submitted that the passing of order on 15.03.2017 was not intimated to the assessee therefore on 21st March, 2017 againn the assessee moved an application before the ld. CIT(A) for seeking adjournment on 30.03.2017 the assessee had submitted written submissions to the ld. CIT(A) for consideration.
The ld. A.R drawn our attention to Page No. 32 of the Paper book which contained the covering letter from the office of Commissioner of Income Tax(A) to the assessee and pointed out that the impugned order dated 15.03.2017 was dispatched to the assessee on 21.05.2017. In this way it was submitted that due opportunity of hearing was not granted to the assessee. On the other hand ld. DR relied upon the orders passed by the revenue authorities.
We have heard the counsels for both the parties and we have also perused the material placed on record as well as the orders passed by the P a g e | Hetu Investment & Trading Ltd. Vs. Income Tax Officer, Ward-5(1)(4) revenue authorities. From the records we notice that the assessee had filed an application on 10.03.2017 for seeking adjournment but the ld. CIT(A) proceeded to decided the case ex-parte and passed order on 15.03.2017. We also noticed that the impugned order was dispatched only on 21.05.2017 for which no justification has been putforth before us by the revenue. We also noticed that although the assessee had been moving applications one after another but no reply was ever given by ld. CIT(A) regarding passing or pronouncement of orders on 15.03.2017. On the other hand we have also noticed that assessee has also not cooperated with the ld. CIT(A) and had not complied with the directions so given by the ld. CIT(A) and even the order passed under Sec. 144 of the Income Tax Act by the AO also reflects the conduct of the assessee.
After hearing the parties at length, although we are not convinced with the reasoning put forth by the assessee for nonappearance before Ld. CIT(A). We are of the view that it is the bounded duty of the assessee or his representative to appear before the authorities on each and every date of hearing and to assist and cooperate the authorities for the early disposal of the appeal, but in this case, assessee had not cooperated with the revenue authorities.
Be that as it may, considering the facts and circumstances of the present case and keeping in view the substantial cause of justice, we are of the considered view that the ends of justice would be met only, when we provide one more opportunity of hearing to the assessee for contesting the appeal on merits. In our view, if the assessee is allowed to represent his case before Ld. CIT(A) then in that eventuality, no prejudice would be caused to the interest of revenue as legitimate taxes due on the assessee's correct income will be adjudicated. Whereas, if the contrary view is taken then in that eventuality the assessee may be put to great hardship and difficulty. Therefore, keeping in view the above discussion, we set aside the ex- parte order passed by Ld. CIT(A) and remit the matter back to the P a g e | Hetu Investment & Trading Ltd. Vs. Income Tax Officer, Ward-5(1)(4) file of Ld. CIT(A) with a direction to provide one more opportunity to the assessee to represent his case and thereafter pass afresh order on all the grounds raised by the assessee. Assessee is also directed to appear before Ld. CIT(A) within 60 days from today and cooperate in early disposal of the appeal.