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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)-16, Mumbai dated 01.03.2017 for Assessment Year 2012-13. The assessee has raised the following grounds of appeal:
1. That on the facts and in the circumstances of the appellant's case and in law, learned CIT(A) has erred in holding that none appeared before him on behalf of the appellant.
2. That on the facts and in the circumstances of the appellant's case and in law, learned CIT(A) has erred in upholding the addition on account of the alleged bogus purchases made by the Assessing Officer to the extent of 12.5 %. 3. That on the facts and in the circumstances of the appellant's case and in law, learned CIT(A) has erred in upholding unsecured loans as unexplained cash credit amounting to Rs. 1,25,85,150/- made by the Assessing Officer. 4. The learned Commissioner's order being contrary to law, evidence and facts of the case should be set aside, amended or modified in the light of the grounds deduced above.
Mum 2017-M/s Gemini Engi Fab Ltd.
The grounds of appeal
above are independent of and without prejudice to each other.
6. The appellant craves leave to reserve to himself, the right to add to, alter or amend any of the aforesaid grounds of appeal at or before the time of hearing and to produce such further evidence, documents and papers as may be considered necessary.
Brief facts of the case are that the assessee-company is engaged in the manufacturing of fabrication machinery, filed its return of income for Assessment Year 2012-13 on 27.09.2012 declaring total income at Rs. 22,44,030/-. The return of income was selected for scrutiny. The assessment order was passed under section 143(3) on 23.03.2015. The Assessing Officer while passing the assessment order besides the other addition/ disallowances made the addition on account of bogus purchases of Rs. 14,75,155/- and treated the unsecured loan of Rs. 1,25,85,150/- as unexplained cash credit. On appeal before the ld. CIT(A), the addition of bogus purchases was restricted to 12.5%, however, the addition on account of unexplained cash credit was confirmed. Thus, further aggrieved by the order of ld. CIT(A), the assessee has filed the present appeal before us.
We have heard the ld. Authorized Representative (AR) of the assessee and ld. Departmental Representative (DR) for the Revenue and perused the material available on record. The ld. AR of the assessee submits that the Assessing Officer passed the assessment order without giving fair and proper opportunity. The ld. CIT(A) passed the order ex-parte without considering the written submissions and the documentary evidences Mum 2017-M/s Gemini Engi Fab Ltd. furnished by the assessee. The ld. AR of the assessee further submits that the assessee filed copy of Paper Book containing Ledger and Purchase Register of assessee, confirmation of account from M/s Goodluck Metal Corporation, copy of tax invoices, bank statement. However, the ld. CIT(A) has not considered those submission. The ld. AR further submit that the assessee filed written submission before the ld. CIT(A) on 20.10.2016, however, the same was not considered while passing the impugned order. The ld AR for the assessee further submits that he has also filed application for additional evidence on 07.09.2016 before the ld. CIT(A). The ld. CIT(A) failed to consider the documentary evidence, application for additional evidence and the written submission available on record. The ld. AR of the assessee submits that the matter may be restored to the file of ld. CIT(A) for considering the documentary evidences, additional evidences and the written submission and passed the order afresh.
On the other hand, the ld. DR for the Revenue submits that the assessee was given ample opportunity. The assessee failed to appear before the ld. CIT(A) and to substantiate its claim with regard to the purchases and the unexplained cash credit. The ld. DR prayed for dismissal of the appeal. 5. We have considered the rival submission of the parties and have gone through the order of ld. CIT(A). We have noted that the assessee furnished the Paper Book containing copy of ledger account and purchase register of 3 ITA No. 4284 Mum 2017-M/s Gemini Engi Fab Ltd. Gemini Engi-Fab Ltd., copy of Confirmation of Accounts from M/s.
Goodluck Metal Corporation dated 01.04.2012, copies of Tax Invoices, Central Excise Invoices, weigh-bridge, delivery challans and one transportation bill and copy of Bank Statement from The Bharat Co- operative Bank Ltd. from 01.04.2011 to 31.03.2012, copy of letter issued by Keshariya Diam Pvt. Ltd. and copy of Bank Statement from Axis Bank Ltd.) on 12.08.2016 which is duly acknowledge by the office of ld. CIT(A). We have also noted that the assessee filed an application for additional evidence, which is duly acknowledged by the office of ld. CIT(A) on 07.09.2016. We have further noted that the assessee filed its written submission dated 13.10.2016, duly acknowledged vide acknowledgement from the office of ld. CIT(A) dated 20.10.2016. copy of all these documents referred above are file before us by ld AR for the assessee with the certificate that these documents were placed before ld CIT(A). We have noted that the ld. CIT(A) has not referred in its order about the written submission, documentary evidence furnished by assessee.
From the contents of the impugned order, we have also noted that the assessee filed appeal before the ld. CIT(A) on 14.05.2015. The first date of hearing was fixed by ld. CIT(A) on 26.05.2016. On 26.05.2016 the assessee seeks adjournment and the case was adjourned for 09.06.2016.
On 09.06.2016 none-appeared on behalf of assessee and the case was re- 4 Mum 2017-M/s Gemini Engi Fab Ltd. fixed for hearing on 24.06.2016. On 24.06.2016 none-appeared on behalf of assessee and the case was fixed on 01.07.2016 and case was adjourned from time to time on 05.08.2016, 12.08.2016, 19.08.2016 and finally for 27.02.2017. We have noted that the ld. CIT(A) has not recorded in the order that after availing date on 26.06.2016, if any fresh notice was issued after 09.06.2016 or not to the Assessing Officer about fixing the date of hearing. The copy of Paper Book before the Assessing Officer reveals that the assessee filed Paper Book containing ledger account, confirmation of Goodluck Metal, tax invoices and various bank statements on 12.08.2016.
The assessee also filed application for additional evidence on 07.09.2016 and written submission on 20.10.2016. However, none of the documents, application for additional evidence and written submission referred and discussed by ld. CIT(A) while passing the impugned order. Facts remains that the impugned order was passed without giving personal hearing to the assessee.
Considering the peculiarity of the fact, we feel it appropriate to restore the appeal to the file of ld. CIT(A) to pass the order afresh after considering the various documentary evidences furnished by assessee in accordance with law. The ld. AR of the assessee is also directed to fully co-operate with the ld. CIT(A) and to furnish for necessary document/evidences and not to seek adjournment without any valid reasons.
In the result, appeal of the assessee is allowed for statistical purposes. 5 Mum 2017-M/s Gemini Engi Fab Ltd. Order pronounced in the open court on 30/08/2018.