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PER PAWAN SINGH, JUDICIAL MEMBER; 1. These two appeal by assessee are directed against the separate orders of ld.
CIT(A)-50, Mumbai dated 23.11.2016 for Assessment Year 2010-11 & 2011-12. In both the appeals the assessee has raised identical grounds of appeal except variation of figures ,hence, both the appeals were clubbed, & 2686/Mum/2017 -Galaxy Entertainment Corporation Ltd. heard and are decided by common order. For appreciation of facts we are referring the fact for Assessment Year 2010-11. In Assessment Year 2010- 11, the assessee has raised the following grounds of appeal:
1. On the facts and circumstances of the case and in law applicable thereto, the Ld. CIT(A) erred in passing ex-parte.
2. On the facts and circumstances of the case and in law applicable thereto, the Ld. CIT(A) erred in disallowing service tax receivable written off during the year amounting to Rs. 95,85,000/-. 3. On the facts and circumstances of the case and in law applicable thereto, the Ld. CIT(A) erred in not reducing the foreign exchange fluctuation gain on revaluation of sundry creditors towards the purchase of fixed assets amounting to Rs. 47,48,723/-. 4. The appellant prays that various disallowance/additions confirmed by the CIT(A) may be deleted.
Brief facts of the case are that the assessee filed its revised return of income for Assessment Year 2010-11 on 06.05.2011 declaring Nil income. The return of income was selected for scrutiny. The assessment order was passed on 12.02.2013 under section 143(3). The Assessing Officer while passing the assessment order assessed the loss of Rs. 9,51,95,255/- against the returned loss of Rs. 10,47,80,255/-, disallowed service tax receivable return of Rs. 95,85,000/- and not allowed in reducing the foreign exchange fluctuation gain on revaluation of sundry creditors towards the purchase of fixed assets amounting to Rs. 47,48,723/-. On appeal before the ld. CIT(A), the action of Assessing Officer was confirmed. Therefore, further aggrieved by the order of ld. CIT(A), the assessee has raised filed the present appeal before us. & 2686/Mum/2017 -Galaxy Entertainment Corporation Ltd.
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. Ground No.1 relates to denial of opportunity and passing the impugned order as ex-parte. The ld. AR of the assessee submits that the ld. CIT(A) has not given proper opportunity to the assessee to explain the facts of the case. The ld. CIT(A) decided the appeal of the assessee ex-parte. The ld. CIT(A) has not given any reasonable and proper opportunity and confirmed the order of Assessing Officer. The ld. AR of the assessee further submits that the assessee has suffered prejudice in not granting sufficient opportunity by the ld. CIT(A) and prayed that all the grounds of appeal
may be restored to the file of ld. CIT(A) for adjudication of the claims on merit. The ld. AR of the assessee undertake on behalf of assessee that the assessee would be vigilant to pursue the matter diligently before the ld. CIT(A).
4. On the other hand, the ld. DR for the Revenue vehemently opposed the contention of ld. AR of the assessee. The ld. DR further submits that assessee was given five opportunities to appear before the ld. CIT(A), when none appeared on behalf of assessee, the ld. CIT(A) left no option except to decide the appeal of the assessee on the basis of material available on record. The ld. DR for the Revenue further submits that assessee does not deserve any leniency as they themselves was appeared and not explained the reasons of non-appearance before the ld. CIT(A). 3 & 2686/Mum/2017 -Galaxy Entertainment Corporation Ltd.
We have considered the submission of ld representatives of both the parties and have gone through the orders of CIT(A). The ld. CIT(A) in paragraph-5 of his order has recorded that he has fixed the hearing on 24.08.2015, 05.11.2015, 18.03.2016, 27.10.2016 and 22.11.2016. we have noted that the ld. CIT(A) failed to record his satisfaction, if the notices sent to the assessee was duly served or not or the same was acknowledged by the assessee. The ld. CIT(A) has not mentioned as to how the notice was served either by way of special messenger, registered post, speed- post, pasting of any other mode of service. The fact remains that the assessee remained ex-parte during the first appellate stage. The order impugned before us was passed in absence of assessee. Considering the contention of both the parties, we deem it appropriate to restore all the issues/grounds of appeal
to the file of CIT(A) to decide all the claims/issue of the assessee afresh. Needless to say that ld. CIT(A) shall grant opportunity of hearing to the assessee before passing the order in accordance with law.
6. The assessee is also directed to approach the ld. CIT(A) within one month from the receipt of this order to fix the date of hearing of the appeal. On receipt of the order the ld CIT(A) shall fix the date of hearing. The assessee is further directed to file all relevant documentary evidence in his power and possession before the ld. CIT(A) and not to seek the time & 2686/Mum/2017 -Galaxy Entertainment Corporation Ltd. without any valid reasons. In the result the appeal is allowed for statistical purpose.
In the result, appeal of the assessee is allowed for statistical purpose.
ITA No. 2686/Mum/2017 AY 2011-12 8. The assessee has raised identical grounds of appeal, the impugned order for the year consideration was also passed ex-parte by ld CIT(A). As we have allowed the identical grounds of appeal for AY 2010-11 and restore the matter to the file of CIT(A) in therefore, this appeal of assessee is also allowed with similar direction.
In the result the appeal of the assessee for AY 2011-12 is also allowed for statistical purpose.
Order pronounced in the open court on this 29 /08/2018.