M/S. NEW SHRIRAM CONSTRUCTION,NASHIK vs. INCOME TAX OFFICER,

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ITA 126/PUN/2017Status: DisposedITAT Pune09 April 2018AY 2012-133 pages
AI SummaryRemanded

What did the Tribunal hold?

The ITAT found that the CIT(A) erred in dismissing the appeal without adjudicating on merits. The tribunal restored the issue back to the Assessing Officer for a fresh decision after providing the assessee with a reasonable opportunity of hearing.

What were the facts?

The assessee's appeal was dismissed by the CIT(A) ex-parte due to non-appearance, without deciding the merits of the case. The assessee's authorized representative had demised, leading to difficulties in attending hearings.

What were the issues?

Whether the CIT(A) erred in dismissing the appeal ex-parte without deciding the merits, and whether the disallowance under Section 40A(3) was justified.

Which sections of the Income-tax Act were involved?

Section 143(3),Section 40A(3)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, PUNE BENCH “SMC”, PUNE

For Appellant: Shri Vijay Patil
For Respondent: Shri Mukesh Jha
Hearing: 09.04.2018Pronounced: 09.04.2018

PER SUSHMA CHOWLA, JM:

The appeal filed by assessee is against order of CIT(A)-2, Nashik, dated 09.12.2016 relating to assessment year 2012-13 against order passed under section 143(3) of the Income-tax Act, 1961 (in short ‘the Act’).

2.

The assessee has raised the following grounds of appeal:-

1.

On the facts and in the circumstances of the case and in law, the order passed by the Commissioner of Income Tax (Appeals) [CIT(A)] has 2 M/s. New Shri Ram Construction

been passed in violation of the principles of natural justice without giving sufficient opportunity of being heard to the assessee. Therefore the order passed by the CIT(A) is ab-initio-void, illegal and unlawful.

2.

On the facts and in the circumstances of the case and in law, the learned CIT(A) has erred in upholding the action of the Assessing Officer, in making disallowance of Rs.25,93,145/- u/s 40A(3) of the Income Tax Act.

3.

On the facts and in the circumstances of the case and in law, the learned CIT(A) has erred in dismissing the assessee’s appeal, without discussing the merits of the case.

3.

The husband of assessee appeared in person before us and pointed out that the appeal of assessee was decided ex-parte by the CIT(A) and hence, the present appeal.

4.

We have heard the rival contentions and perused the record. On perusal of record, we find that the CIT(A) had allowed few opportunities of hearing to the assessee, who did not appear before the CIT(A). The CIT(A) in turn, relying on different decisions including the decision of the Hon’ble High Court of Madhya Pradesh in the case of Tukojirao Holkar Vs. CWT reported in 23 ITR 480 (MP) and CIT Vs. B.N. Bhattacharya reported in 118 ITR 461 (MP) had dismissed the appeal of assessee for non appearance. Thereafter, the CIT(A) has failed to decide the issue raised on merits but has simply rejected the same because of non appearance by the assessee. We find no merit in the order of CIT(A) in this regard. The CIT(A) should have decided the issue on merits and in the absence of the same, the said order of CIT(A) does not survive. The perusal of assessment order also reflects that the said assessment proceedings were being attended by Shri Satish Boob, ITP & AR of the assessee, who had demised. In order to provide reasonable opportunity of hearing to the assessee, we deem it fit to restore the issue on merits, back to the file of Assessing Officer. The assessee is directed to co-operate and appear before the Assessing Officer and file requisite details and evidences. 3 M/s. New Shri Ram Construction

The Assessing Officer is directed to allow reasonable opportunity of hearing to the assessee and decide the issue in accordance with law. Consequently, the grounds of appeal raised by the assessee are allowed. Since we are remitting the issue back to the file of Assessing Officer, we are not adjudicating the issue raised on merits.

5.

In the result, appeal of assessee is allowed as indicated above.

Order pronounced in open Court on this 9th day of April, 2018. (ANIL CHATURVEDI) (SUSHMA CHOWLA) ऱेखा सदस्य / ACCOUNTANT MEMBER न्याययक सदस्य / JUDICIAL MEMBER ऩुणे / Pune; ददनाांक Dated : 9th April, 2018. GCVSR आदेश की प्रयतलऱपप अग्रेपषत/Copy of the Order is forwarded to : 1. अऩीऱाथी / The Appellant; 2. प्रत्यथी / The Respondent; 3. आयकर आयुक्त(अऩीऱ) / The CIT(A)-2, Nashik;

4.

The Pr.CIT-2, Nashik; ववभागीय प्रतततनधध, आयकर अऩीऱीय अधधकरण, ऩुणे, एक-सदस्य 5. मामऱा / DR ‘SMC’, ITAT, Pune; गार्ड पाईऱ / Guard file. 6. आदेशािुसार/ BY ORDER, सत्यावऩत प्रतत //// वररष्ठ तनजी सधिव / Sr. Private Secretary आयकर अऩीऱीय अधधकरण ,ऩुणे / ITAT, Pune

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