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Order Under Section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by the assessee under section 253 of the Income Tax Act is directed against the order of Ld. Commissioner of Income Tax [ld. CIT(A)] (Appeals)-28, Mumbai dated 30.10.2016 for Assessment Year (AY) 2010-11.
The assessee has raised the following grounds of appeal:
1. On the facts and in the circumstances of the case, the learned CIT(A) erred in passing order ex-parte when there has been compliance to the notices of hearing. The appellant prays that, the order passed by CIT(A) be cancelled and CIT(A) has erred in stating that, the appellant has not counted the addition made. 2. (a) On the facts and in the circumstances of the case, and in law the learned CIT(A), erred in confirming the addition of Rs.29,96,280/- being the income earned on sale of DEPB Licence which addition be deleted. (b) The learned CIT(A) erred in not considering that, there is double taxation of the same income in assessment year:2011-12 and 2012-13 and necessary 2 – Parvez Abdulkader Khatri direction be given to delete the additions made in asst.year:2011-12 and 2012-13. If, the addition is upheld in this assessment year.
3. The learned CIT(A) erred in confirming the addition of Rs.26,77,124/- being the business debts/ amounts written off which addition should be deleted. 4. (a) On the facts and in the circumstances of the case, the learned CIT(A) erred in confirming the addition of Rs.5,89,820/- made out of tour and travel expenses which addition be deleted. (b) Without prejudice, the addition may be reduced. 5. (a) On the facts and in the circumstances of the case, the learned CIT(A) erred in confirming the addition of Rs.2,08,658/- made out of business promotion expenses which be deleted. (b) Without Prejudice the addition made being on adhoc basis it be reduced. 6. (a) On the facts and in the circumstances of the cases, the learned CIT(A) erred in confirming the addition of Rs.36,608/- out of hotel expenses which is made on adhoc basis the same be deleted. (b) Without prejudice, the addition made on higher side it be reduced.
On the facts and in the circumstances of the case, the learned CIT(A) erred in confirming the addition of Rs.2,13,404/- made out of sundry expenses on adhoc basis which addition be deleted. (b) Without prejudice, the addition being on higher side it be reduced. 8. (a) On the facts and in the circumstances of the case, the learned CIT(A) erred in confirming the addition of Rs.2,06,870/-, being 20% of Motor car expenses and car Insurance and depreciation which addition be deleted. Without Prejudice, the addition made be reduced.
On the facts and in the circumstances of the case, the learned CIT(A) erred in confirming the disallowance of Rs.64,708/- made out of telephone expenses, which addition be deleted. Without Prejudice, the addition made be reduced. 10. (a) On the facts and in the circumstances of the case, and in law the learned CIT(A) erred in confirming the addition of Rs.6,80,893/- being 10% of expenses incurred on packing and labour charges, transport charges, loading and unloading charges which addition be deleted. (b) Without prejudice, the disallowance being on adhoc basis the same be reduced.
On the facts and in the circumstances of the case, and in law the learned CIT(A) erred in confirming the addition of Rs.38,694/- be made u/s.14A which addition be deleted.
On the facts and in the circumstances of the case, and in law the learned CIT(A) erred in confirming addition of Rs.78000/- as income from rent which addition be deleted, and the learned CIT(A) erred in stating that, no evidence filed thereof. The appellant prays that, the addition made be deleted. 2. Brief facts of the case are that the assessee an individual is proprietor of M/s Nimex Trading Corporation engaged in manufacturing and trading, filed his return of income for relevant assessment year on 15.10.2010 declaring total income of Rs. 83,32,530/- The assessment was completed on 26.03.2013 under section 143(3) of the Act. The Assessing Officer (AO) while passing the assessment order made several additions and disallowances. Aggrieved by the order of AO, the assessee has filed appeal before the ld. CIT (A). The ld CIT(A) dismissed the appeal of assess ex- parte vide order dated 03rd October 2016. Thus, further aggrieved by the order of ld. CIT(A), the assessee has filed the present appeal before us.
We have heard the ld. representatives of the parties and have gone through the orders of the authorities below. At the outset of the hearing, the ld. AR of the assessee argued that the ld. CIT(A) dismissed the appeal of the assessee ex-parte without giving fare, adequate and sufficient opportunity to the assessee. The ld. AR of the assessee placed on record the copy of application dated 21.11.2016 filed on 6.12.2016. In the application, the assessee contended that he had received the order dated 03.10.2016 on 08.11.2016.
The assessee prayed to the ld CITA) to recall the ex-parte order. Before us, the ld. AR of the assessee argued that the appeal may be restored to the file of 4 – Parvez Abdulkader Khatri ld. CIT(A) for adjudication of the grounds of appeal on merit, as the impugned order is ex-parte and was passed without hearing the assessee. On the other hand the ld. DR for the Revenue submits that he has no objection if the appeal is restored to the file of ld. CIT(A) to decide all the grounds of appeal afresh.
4. We have considered the rival submission of the parties and perused the order of ld. CIT(A) dated 03.10.2016. The ld. CIT(A) passed the order ex- parte, but the same is clearly unjustified, as can be seen from the averments made by the assessee in its letter addressed to the CIT(A) dated 21.11.2016 seeking recall of the ex-parte order. The assessee explained that he had filed a Paper Book containing 134 pages and that the predecessor had conducted several hearings that it was only on the last date of hearing on 27.09.2016 that assessee sought adjournment due to the illness of the counsel, but the appeal has been decided ex-parte, without considering the material already on record, including the judicial rulings relied upon in the written submissions. The aforesaid facts clearly shows that the contentions of the assessee has been unjustly disregarded and appeal has been wrongly disposed ex-parte. Therefore, we deed it fit and proper to restore the appeal to the file of the ld. CIT(A) to decide it afresh in accordance with law. Needless to say, ld. CIT(A) shall grant adequate and sufficient opportunity to the assessee before passing the order as per law. Thus, all the grounds of appeal raised by assessee are allowed for statistical purpose.
5 – Parvez Abdulkader Khatri 5. In the result, appeal filed by assessee is allowed for statistical purpose Order pronounced in the open court on this 30th day of November, 2017.