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Income Tax Appellate Tribunal, KOLKATA BENCH ‘D’, KOLKATA
Before: Shri P.M. Jagtap, AM & Shri S.S. Viswanethra Ravi, JM]
order
: February 16, 2018 ORDER
PER P.M. JAGTAP, AM
This appeal filed by the assessee is directed against the order of Ld. CIT (Appeals) – 2, Kolkata dated 11.02.2016 passed ex-parte confirming the addition of Rs. 16,64,00,000/- made by the A.O. u/s 68 by treating the share capital and share premium received by the assessee company as unexplained cash credits.
2. The assessee in the present case is a company which is engaged in the business of investment in shares and securities. The return of income for the year under consideration was filed by it originally on 30.03.2009 declaring a total income of Rs. 12,610/-. Although the said return was initially accepted u/s 143(1) of the Act, the assessment was subsequently reopened by the A.O. and in the assessment Assessment Year: 2008-09 Shivanand VYapaar Pvt. Ltd. completed u/s 147/143(3) vide an order dated 17.06.2010, the total income of the assessee was determined by the A.O. at Rs. 51,914/-. Thereafter, the order passed by the A.O. u/s 147/143(3) was set aside by the Ld. CIT vide her order dated 28.03.2013 passed u/s 263 with the direction to the A.O. to make the assessment afresh after examining the issue of share capital and share premium received by the assessee company amounting to Rs. 16,64,00,000/- as per the provisions of section 68. As per the direction of Ld. CIT given in the order of u/s 263, a fresh assessment was made by the A.O. u/s 143/263/147 of the Act vide an order dated 31.03.2014 wherein he made an addition of Rs. 16,64,00,000/- to the total income of the assessee on account of share capital and share premium by treating the same as unexplained cash credits. 3. Against the order passed by the A.O. u/s 143/263/147, an appeal was preferred by the assessee before the Ld. CIT(A) and since there was no compliance on the part of the assessee to the notices issued by him fixing the said appeal for hearing from time to time, the Ld. CIT(A) proceeded to dispose of the appeal of the assessee vide his appellate order dated 11.02.2016 passed ex-parte whereby he confirmed the addition made by the A.O. on account of share capital and share premium by treating the same as unexplained cash credits u/s 68, thereby dismissing the appeal of the assessee. Aggrieved by the order of the Ld. CIT(A), the assessee has preferred this appeal before the Tribunal. 4. In ground no 1 raised in this appeal, the assessee has challenged the impugned order passed by the Ld. CIT(A) ex-parte on Assessment Year: 2008-09 Shivanand VYapaar Pvt. Ltd. the ground that the same was passed without giving proper and sufficient opportunity of being heard to the assessee which is in violation of principles of natural justice. In support of the assessee’s case on this issue, an affidavit of Shri Mohan Kumar Kedia, Accountant of the assessee is filed before the Tribunal explaining the reasons for non-appearance before the Ld. CIT(A) as under: “1. That I was entrusted with the work of preparing a paper book in the case of Shivanand Vyapaar Pvt. Ltd. for its appeal for A.Y. 2008-09 which was pending before the Commissioner of Income (Appeals) – 2 having Appeal No. 1766/CIT(A)-2/6(1)/2014-2015.
That during the month of January and February 2016, I was keeping very unwell due to fluctuation in my blood pressure & sugar and as a result, I was pre-occupied in attending to my medical needs.
That as a result of the above, I was unable to attend my office and professional duties and therefore, was unable to provide the paper book to be filed in the hearing before the Appellant Commissioner.”
Keeping in view the averments made by the accountant of the assessee company on oath as above, we are satisfied that there was a sufficient cause for the non-appearance on behalf of the assessee before the Ld. CIT(A) when its appeal was fixed for hearing. Accordingly, we set aside the impugned order passed by the Ld. CIT(A) ex-parte and remit the matter back to him for disposing of the appeal of the assessee afresh on merit in accordance with law after giving proper and sufficient opportunity to the assessee of being heard. As undertaken by the learned counsel for the assessee at the time of hearing before the Tribunal, the assessee shall make due compliance before the Ld. CIT(A) and shall extend all the possible cooperation to the Ld. CIT(A) in order to enable him to dispose of its appeal expeditiously.