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Income Tax Appellate Tribunal, DELHI BENCH “D”, NEW DELHI
Before: SHRI N.K. SAINI & SHRI H.S. SIDHU
ORDER PER H.S. SIDHU : JM
These Appeals by the Assessee are directed against the common Order dated 27.2.2013 of the Ld. Commissioner of Income Tax(A)-XXXII, New Delhi pertaining to assessment years 2009-10 & 2008-09 respectively. Since the issues involved in these appeals are inter- connected, hence, the appeals were heard together and are now being consolidated and disposed of by this common order for the sake of convenience.
The following common grounds raised in these appeals:-
On the facts and circumstances of the case, the order passed by the learned Commissioner of Income Tax (Appeals) [CIT(A)] is bad, both in the eye of law and on facts.
2. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in disposing of the appeal exparte despite the fact that the assessee has been appearing before him and has even filed the written submission.
3. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in holding that the assessee failed to appear on the date given as per the notice issued by him.
4. On the facts and circumstances of the case, the order passed by the learned CIT(A) without giving proper and adequate opportunity of being, heard is bad and liable to be quashed.
5(i) On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in rejecting the contention of the assessee that the proceedings initiated under Section 153A against the appellant and the assessment framed thereafter are in violation of the statutory conditions of the Act and the procedure prescribed under the law and as such the same is bad in the eye of law.
6. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in confirm the addition without dealing with the arguments and the written submission submitted by the appellant on merit.
7(i) On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in confirming the addition of Rs.12,96,000/- as income from other sources.
(ii) That the above addition was made on the basis of material collected at the back of the assessee without giving assessee an opportunity to rebut the same.
(iii) That the above addition was made on the basis of statement of a person recorded back of assessee without giving assessee an opportunity to cross examine the same.
8. Without prejudice to the above and in the alternative, learned CIT(A) has erred both on facts and in law in confirming the total amount as income in the hands of the assessee despite holding that the assessee is engaged in the hawala business and as such at best the commission earned on such business can be considered to be the assessee's income.
That the appellant craves leave to add, amend or alter any of the grounds of appeal.
The facts narrated by the revenue authorities are not disputed by both the parties, hence, they are not repeated here for the sake of brevity.
At the time of hearing, Ld. A.R. of the Assessee, Ms. Rano Jain, CA has not pressed the ground nos. 1 to 6 in both the appeals, hence, the same are dismissed as such. The only grounds pressed in both the appeals are ground no. 7 & 8. During the hearing, the A.R. of the assessee draw our attention towards the assessment order dated 02.12.2011 passed u/s. 153 r.w.s. 144 of the I.T. Act, 1961. She stated that the addition was made on the basis of material collected at the back of the assessee without giving assessee an opportunity to rebut the same and also on the basis of statement of a person recorded at the back of the assessee without giving assessee an opportunity to cross examine same.
She further stated that Ld. CIT(A) has erred in confirming the total amount as income in the hands of the assessee despite holding that the assesee is engaged in the hawala business and as such at best the commission earned on such business can be considered to be the assesse’s income. Further she stated that Ld. CIT(A) has upheld the exparte assessment order of the AO. Before us, the Ld. Counsel of the assessee has filed a Paper Book containing pages 1 to 34 having the copy of acknowledgement of return of income tax along with computation for AY 2009-10; copy of audited balance sheet and profit and loss account; copy of seized material; copy of notice u/s. 153A dated 3.6.2011; copy of reply filed by assessee alongwith the copy of income tax return filed in response to notice u/s. 153A; copy of notice u/s. 143(2) dated 5.10.2011; copy of notice u/s. 143(2) dated 27.10.2011 and copy of submissions filed before CIT(A). She submitted that the aforesaid documents were not considered by the lower authorized while passing their respective orders, which goes to the root of the matter and are very essential to be considered. Therefore, she requested that the issues in dispute may be set aside to the file of the AO to decide the same afresh, under the law, after giving full opportunity to the assessee.
On the contrary, Sh. Naveen Chandra, CIT(DR) strongly opposed the request of the ld. A.R. of the assessee and stated that the assessee remained non-cooperative before the AO, hence, the appeal of the Assessee may be dismissed by upholding the action of the Ld. CIT(A).
Ms. Rano Jain, A.R. of the assessee undertake on behalf of the assessee to fully cooperate with the AO in the assessment proceedings and to file all necessary evidences without wasting of further time.
After hearing both the parties and perusing the relevant records available with us, especially the orders passed by the Revenue Authorities & the Paper Book which contains pages 1-34 having the copy of acknowledgement of return of income tax along with computation for AY 2009-10; copy of audited balance sheet and profit and loss account; copy of seized material; copy of notice u/s. 153A dated 3.6.2011; copy of reply filed by assessee alongwith the copy of income tax return filed in response to notice u/s.153A; copy of notice u/s.143(2) dated 5.10.2011; copy of notice u/s.143(2) dated 27.10.2011 and copy of submissions filed before CIT(A). We find force in the contention raised by the Ld.AR of the assesse that the aforesaid documents were not considered by the lower authorities while passing their respective orders, however, the same goes to the root of the matter and are very essential to be considered. We are of the considered view that AO as well as Ld.CIT(A) has decided the issues in dispute against the assessee without affording sufficient opportunity to the assessee and made the addition on the basis of material collected at the back of the assessee and also on the basis of statement of a person recorded at the back of the assessee without giving assessee. As stated by the Ld.AR for the assessee that the assessee is having all necessary evidences for substantiating its claim before the AO and also undertake to fully cooperate in the assessment proceedings and to file the necessary evidences for substantiating its claim before the AO without wasting of further time. Keeping in view of the Statement given by the Ld. A.R. for the assessee on behalf of the assessee and on the facts and circumstances of the present case, we are of the considered view that the issues in dispute requires thorough examination at the level of the AO. Therefore, in the interest of justice, we set aside the issues in dispute to the file of the AO to consider the same, afresh under the law, after giving full opportunity of being heard to the assessee. However, the Assessee is directed to file all the relevant documents before the AO for substantiating its claim and fully cooperate with the AO in the proceedings.
In the result, both the Appeals filed by the Assessee stand partly allowed for statistical purposes.
Order pronounced on 06/07/2017.