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Income Tax Appellate Tribunal, “SMC” BENCH, MUMBAI
Before: SHRI SHAMIM YAHYA
CO No. 96/Mum/2017 M/s. Abhinav Grani Ceramics P. Ltd. आदेश / O R D E R Per Shamim Yahya, A. M.: This is an appeal by the Revenue and cross objection by the assessee directed against the Order by the Commissioner of Income Tax (Appeals)-16, Mumbai (‘CIT(A)’ for short) dated 30.08.2016 and pertains to the assessment year (A.Y.) 2007-08. 2. The grounds of appeal read as under:
Revenue’s appeal ( 1. “Whether the CIT(A) was justified in holding that re-opening of assessment u/s. 147 was invalid when the Assessing Officer had received information from the Investigation Wing of the Income Tax Department that the assessee had received entries from entities indulging in the activity of providing accommodation entries.” Assessee’s C.O. No. 96/Mum/2017 1. On the facts and circumstances of the case and provisions of law, the ld. CIT (Appeal) erred in not adjudicating on merit that loan taken from M/s Avi Exports Prop firm of Mr. Rajendra Jain amounting to Rs.10,00,000/- is genuine one ignoring the evidences submitted in the appellate proceeding.
On the facts and circumstances of the case and provisions of law, the ld. CIT (Appeal) erred in not adjudicating on disallowance of interest of Rs.26,630/- made by Assessing officer without appreciating the fact that interest was paid to M/s Avi Exports in the ordinary course of business of the respondent.
3. On the facts and circumstances of the case and provisions of law, the Id. CIT (Appeal) erred in not adjudicating that addition of shares capital of Rs.30,00,000/- made by assessing officer is not warranted .
These appeals have been fixed for hearing earlier also and were adjourned at the assessee’s request. Today also despite notice none appeared on behalf of the assessee. Hence, these appeals are being disposed of by hearing the learned departmental representative and perusing the records.
CO No. 96/Mum/2017 M/s. Abhinav Grani Ceramics P. Ltd.
Up on careful consideration I find that CIT(A) has decided the issue only on the issue of reopening. He has held that reopening to be bad and has not adjudicated upon the merits of the case. Assessee is aggrieved by this and has raised the cross objection that CIT-A should have adjudicated the issue on merits. I find that higher courts have held that lower authorities should decide both upon the jurisdictional aspect as well as merits of the case for proper appreciation and adjudication by higher authorities. Accordingly, I remit the issue on merits to the file of learned CIT-A. Learned CIT-A is directed to complete the appellate order by deciding up on the merits also. Needless to add, the assessee should be granted proper opportunity of being heard. Since the issue relating to merits has been remitted to the file of the ld. CIT(A) as it has been found that order of ld. CIT(A) is not complete, the issue of reopening is not being adjudicated. The parties are at liberty to raise the issue at appropriate stage.
In the result, this appeal filed by the Revenue and cross objection by the assessee stands allowed for statistical purposes Order pronounced in the open court on 01.11.2017