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Income Tax Appellate Tribunal, “D”, BENCH KOLKATA
Before: SHRI A. T. VARKEY, JM &DR. A.L.SAINI, AM
Appellant by :Shri D.K. Sarkar, FCA Respondent by :Shri A. Bhattacharjee, Addl. CIT सुनवाईक�तार�ख/ Date of Hearing : 24/05/2018 घोषणाक�तार�ख/Date of Pronouncement : 06/06/2018 आदेश / O R D E R Per Dr. A. L. Saini:
The captioned appeal filed by the Assessee, pertaining to Assessment Year 2013-14, is directed against an order passed by the Ld. Commissioner of Income Tax (Appeals)-9, Kolkata in appeal No.233/CIT(A)-9/Wd-1(4)/2016-17/Kol, dated 30.03.2017, which in turn arises out of an assessment order passed by the Assessing Officer u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) 11.02.2016.
The grievances raised by the assessee read as under:
“1. For that the order is bad as well as on fact. 2. For that the order passed in absence of remand report as well as absent of AR on the final hearing date is bad in law as well as on fact. 3. For that the addition of Rs.17,53,443.00 on account of belated payment of employees’ contribution towards EPF & ESIC is bad in law as well as on fact.
Arti Bakery Pvt. Ltd. Assessment Year: 2013-14 4. For that the addition of Rs.65,47,111.00 under section 68 on account of advance from customers is bad in law as well as on fact.
5. For that the addition of Rs.26,14,374.00 u/s 36(1)(iii) for payment of interest free loan of Rs.1,86,74,101.00 out of interest free loan taken of Rs.2,64,63,429.00 is bad in law as well as on fact.
For that the addition on Rs.42,02,600.00 on account of bogus claim of expenditure is bad in law as well as on fact.
For that your appellant craves leave to add/alter any ground/s of appeal at the time or before hearing.”
At the outset, itself the ld. counsel for the assessee submitted before the Bench that impugned order is an ex parte order and the assessee could not plead his case before the Ld. CIT(A). As per Ground No.2 raised by the assessee, the ld. CIT(A) passed the order in the absence of remand report as well as in absence of Authorized Representative of the assessee. The ld. CIT(A) fixed the hearings on dated 23.11.16, on the said date of hearing, the AR of the assessee attended and discussed and filed written submissions in duplicate. Thereafter, ld. CIT(A) sought a remand report from AO. However, on 26.12.2016 the assessee could not attend hearing because of reasons beyond his control. Thereafter, a fresh notice of hearing dated 15.03.2017 was issued by the CIT(A). The assessee was supposed to participate in the appellate proceedings on 15.03.2017 but he could attend because records were not available with him and circumstances were beyond his control. The ld Counsel therefore prayed the Bench that the matter may be remanded back to the file of the CIT(A) for fresh adjudication. The Ld. DR did not have any objection if the matter is remitted before the Ld. CIT(A).
We note that assessee has participated in the appellate proceedings on 23/11/2016, he discussed the case with ld CIT(A) and also filed written submissions. The assessee wanted to appear before the ld CIT(A) on 15.03.2017, but relevant documents were not available and because of circumstances beyond his control. A perusal of the body of the impugned order, it is apparent that it is an ex parte order which has Page | 2
Arti Bakery Pvt. Ltd. Assessment Year: 2013-14 been challenged by the assessee for want of proper opportunity. After considering the reasons given by the assessee, we are satisfied that there was a reasonable cause for non-appearance before the ld. CIT(A) on last date of hearing on 15.03.2017. We also find that the assessee had submitted written submissions during the appellate proceedings and through ld. CIT(A) has sought for remand report has not cared to even wait for the remand report from A.O and moreover ld. CIT(A) has not decided the appeal of the assessee on merits which action of the ld. CIT(A) cannot be countenanced.
In these circumstances, we deem it fit and proper to set aside the order of the ld. CIT(A) and remand the appeal back to the file of ld. CIT(A).The Ld. CIT(A) is directed to pass a speaking order after hearing the assessee and giving adequate opportunity to assessee. For statistical purposes, the appeal of the assessee is allowed.
In the result, the appeal filed by the assessee is allowed for statistical purposes.
Order is pronounced in the open court on 06/06/2018.