AGARWAL BUILDERS & DEVELOPERS,NAVI MUMBAI vs. DCIT 22(3), MUMBAI

During hearing the learned counsel for the assessee Shri H N Motiwalla along with Shri Piyush Chajjed claimed that no defects were pointed out in the books of account by inviting our attention to the earlier order of the Tribunal (para 5) at page 3. It was ascertained that even pursuant to the direction of the Tribunal same order was passed and our attention was invited to the remand report (page 8 of the paper-book). It was explained that the earlier assessment was framed u/s. 144 of the Act and the assessee filed additional evidence before the learned CIT(A) which was refused to be admitted. The observation made by the learned CIT(A) in para 5.7 (i) was claimed to be a wrong observation. It was contended that in the interest of justice both the appeals may be sent back to the file of the learned Assessing Officer. On the other hand, the learned DR shri V Vidyadhar claimed that there is non-cooperation from the assessee and, therefore, the learned Assessing Officer had no option but to pass the impugned orders.

We have considered the rival submissions and perused the material available on record. The facts in brief are that the assessee is engaged in the business of building/developing. The assessee was maintaining its account on computer system through data entry operations. It was claimed that the assessee used the software as DOS bases package and the data was not retrievable when the notices for filing the returns were received. The stand of the assessee is that due efforts were made by the assessee to find a software consultant who could retrieve the DOS based data but could not be retrieved. As per the assessee, in response to notice u/s. 148 and 142(1) various details were furnished vide letter dated 11.12.2008, 13.12.2008 and 16.12.2008. It is noted that the assessment was framed u/s. 144 of the Act on 31.12.2008 and even the matter travelled to the Tribunal on earlier occasion. The Tribunal vide order dated 7.09.2011 (ITA Nos. 1692 & 1693/Mum/2011) remanded the matter back to the file of the learned CIT(A) for adjudication on merit. The relevant portion of the order (para 5) is reproduced hereunder for ready reference:

“5. We have considered the rival submissions and gone through the relevant material on record. The assessment was framed on the basis of estimate and disallowance/additions were made for want of necessary details and evidence as the assessee could not produce the final account and even return of income before the Assessing Officer. On appeal, the assessee produce the final account before CIT(A) upon which the CIT(A) issued a remand report and sought the remand report from the Assessing Officer. Once the final account were referred to the Assessing Officer for its comment in the remand report and subsequently the remand report was filed then the CIT(A) ought to have adjudicated the dispute raised by the assessee in this appeal on merit. On the contrary, the CIT(A) declined to admit the additional evidence produced by the assessee in the form of final accounts and accordingly confirmed the estimated income assessed by the Assessing Officer. We further note that learned CIT(A) has not discussed even the remand report for deciding the issue on merit and therefore in the facts and circumstances of the case and in the interest of justice we are of the considered opinion that the matter is require to be considered and adjudicate in the light of final accounts as well as remand report filed by the Assessing Officer. Hence we set aside the impugned order of the learned CIT(A) and remand the matter to the record of the CIT(A) for adjudication on merits of the issues, which were decided against the assessee after considering the remand report as well as final accounts filed by the assessee.”