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Income Tax Appellate Tribunal, DELHI BENCH ‘F’ : NEW DELHI
Before: HON’BLE, SHRI G.D. AGRAWAL & SHRI KULDIP SINGH
PER KULDIP SINGH, JUDICIAL MEMBER :
Appellant, M/s. DLA Infrastructure Private Ltd. (hereinafter referred to as the ‘assessee’) by filing the present appeal sought to set aside the impugned order dated 01.02.2016 passed by the Commissioner of Income-tax (Appeals)-3, New Delhi qua the assessment year 2010-11 on the grounds inter alia that :-
“1. That on the facts and in the circumstances of the appellant's case, the Ld. CIT (A) erred in disposing of appeal on non-merit by dismissing it for non-appearance/non-prosecution whereas appellant have been duly explained / argued in respect of all grounds raised before the Ld. CIT (A) in written submission along with Paper book which are part of the appellate proceedings record.
2. That on the facts and in the circumstances of the appellant's case, the Ld CIT(A), erred in law in not disposing of appeal as per the provisions of section 250(6) of the Income Tax Act and dismissed the appeal merely due to non-appearance/non- prosecution of the appellant, which is unjustified, unlawful and unsustainable act in law and gross violation of principle of natural justice.
3. That on the facts and in the circumstances of the appellant's case, the Ld. CIT(A) erred in dismissing the appeal by applying the ratio of judgment rendered by Hon'ble Supreme Court in the case of CIT vs. B.N. Bhattachargee reported in 118 ITR 461 which had no application to the facts and circumstances of the appeal filed by the appellant under section 246A of the Income Tax Act, 1961. Without Prejudice to the Grounds of Appeal No 1 to 3
4. That on the facts and in the circumstances of the appellant's case, the Ld CIT (A) erred both in fact and in law in confirming disallowance of business expenses of Rs 34,01,312/-, which are wholly and exclusively expended for the purpose of business of the appellant and indispensable expenses for running and existence of the appellant company.”
2. Briefly stated the facts necessary for adjudication of the controversy at hand are : Assessee company is into the business of trading in shares, commodities, making investment, earning interest income and has returned his income for the year under consideration as Rs.3,42,25,250/-. From the profit & loss account, AO noticed that the assessee has taken interest income as “income from business and profession”, for which assessee has claimed expenditure to the tune of Rs.34,20,519/-. Declining the contentions raised by the assessee, AO disallowed the business expenses of Rs.34,01,312/- made by the AO on the ground that the main source of income of the assessee is deposits with banks which has nothing to do with the expenditure claimed under the head “business and profession” and thereby assessed the total income of the assessee at Rs.3,76,26,560/-.
Assessee carried the matter by way of an appeal before the ld. CIT (A) who has dismissed the appeal for non-prosecution without going into the merits. Feeling aggrieved, the assessee has come up before the Tribunal by way of filing the present appeal.
We have heard the ld. Authorized Representatives of the parties to the appeal, gone through the documents relied upon and orders passed by the revenue authorities below in the light of the facts and circumstances of the case.
Bare perusal of the impugned order passed by the ld. CIT (A) goes to prove that the appeal has been decided ex-parte for non-prosecution on the part of the assessee without going into the merits of the grounds raised
by the assessee. Ld. AR for the assessee contended that the assessee had filed detailed written submissions sufficient to decide the appeal on merits and the ld. CIT (A) has erred in not deciding the appeal on merits as per provisions contained under section 250(6) of the Income-tax Act, 1961 (for short ‘the Act’). No doubt, the ld. CIT (A) has explained in para 2 of the impugned order that numerous notices have been issued to the assessee and on 25.06.2014, Shri Adesh Jain, CA attended and he was directed to file the written submissions in support of its appeal but subsequently none appeared on behalf of the assessee nor filed written submissions.
6. Without going into the merits of the allegation raised by the assessee that it had duly filed the written submissions because this fact has been specifically denied by ld. CIT (A) in the impugned order, we are of the considered view that in all fairness and to decide the issue in controversy once of all and to stop the multiplicity of the proceedings, the assessee is required to be provided with adequate opportunity of being heard so as to decide the appeal on merits. Consequently, impugned order passed by the ld. CIT (A) is set aside and case is remanded back to the ld. CIT (A) to decide afresh after providing an opportunity of being heard to the assessee. Consequently, appeal filed by the assessee is allowed for statistical purposes. Order pronounced in open court on this 14th day of June, 2019.