MEHTA BROTHERS EXPORTS,MUMBAI vs. ASST CIT CIR 16(3), MUMBAI

सुनवाई क" तार"ख /Date of Hearing : 05-04-2017 घोषणा क" तार"ख /Date of Pronouncement : 24-04-2017 आदेश / O R D E R

PER RAMIT KOCHAR, Accountant Member

ITA 5753/Mum/2014 2

“1. The Commissioner of Income-tax (Appeals) - 27, Mumbai [CIT (A)] erred in not adjudicating Ground No. 2 of the Grounds of Appeal.

2. The order passed by the AO is bad in law for the following amongst other grounds.

2.1. The AO has not given reasonable and sufficient opportunity to the appellant to substantiate its claim. The only opportunity given by the AO is on 20th March 2013 before passing the order. In doing so the AO has not followed the principles of natural justice.

2.2. The AO has not carried out the directions of the Hon'ble Income-tax Appellate Tribunal, Mumbai (ITAT) given in its order dated 12th August 2011. 2.3. The AO has not considered the submissions filed by the appellant during the course of hearing in light of the judgment of the Mumbai High Court in the case of CIT vs. Shatrunjay Diamonds (261 ITR 258).

3. Addition of Rs.62,57,080/- u/s 40A(2) of the Act 3.1 Without prejudice to the above, the appellant submits that the CIT(A) erred in confirming the disallowance of Rs.62,57,080/- in respect of purchase of rough diamonds from M/s. Polydiam N.V. u/s. 40A(2)(b) of the Act.

3.2 The appellant submits that expenditure incurred for purchases from M/s. Polydiam NV is not excessive or unreasonable having regard to fair market value of goods for which the payment is made.

3.3 The AO has not brought any evidence to show that the expenditure incurred on such purchases is excessive or unreasonable having regard to the fair market value of the goods purchased. Therefore application by the AO of section 40A(2)(b) of ITA 5753/Mum/2014 3 the Act for purchases from M/s. Polydiam NV is contrary to law and facts on records.

3.4 The appellant submits that there is no comparison between rough diamonds purchased from M/s. Ploydiam NV and from other parties, as these diamonds are not comparable. Thus, the average rate of Rs. 5,670.67 per carat from other parties arrived at by the AO has no basis, ad hoc and arbitrary.

3.5 The CIT (A) erred in not accepting affidavit filed by the appellant during the course of appellate proceedings. The appellant submits that even u/s. 46A production of additional evidence before the appellate authority is permitted in certain circumstances.

5. Each of the ground is without prejudice to one another.”

The brief facts of the case are that the assessee is a partnership firm engaged in the business of manufacturing and trading in diamond and precious stones.

The return of income for the assessment year under appeal was filed by the assessee on 1st December, 2003 declaring total income of Rs. 43,63,640/- and assessment was framed by the Revenue on 30th March, 2006 u/s 143(3) of the Act determining the total income at Rs. 1,44,81,830/-. The assessee carried the matter in appeal before the Ld. CIT(A) who allowed the appeal in first round of litigation. The Revenue filed an appeal before the tribunal against the appellate order of learned CIT(A) in first round of litigation and the tribunal was pleased to pass an order dated 12th August 2011 in for assessment year 2003-04 wherein the issue before the tribunal as to the additions made u/s 40A(2)(b) of 1961 Act which is the only ITA 5753/Mum/2014 4 issue in dispute between rival parties was set aside and remanded back to the file of the AO by the tribunal to be decided in the light of decision of Hon’ble Bombay High Court in the case of CIT v. Shatrunjay Diamonds (2003) 261 ITR 258(Bom), wherein it was held by Hon’ble Bombay High Court that in the case of additions u/s 40A(2)(b) of 1961 Act, the burden of proof is on the assessee to establish that the payment made by it to related party is not excessive or unreasonable. The Hon’ble Court held that certain trade practices prevalent in Diamond Industry are within the knowledge of the assessee and the purpose behind legislation enacting Section 40A(2)(b) of 1961 Act was to provide for shifting of burden on the assessee in cases where the transactions are not at arms length. The relevant extract of Hon’ble Bombay High Court judgment as was referred to by tribunal while remanding matter back to the AO is as under:

“12. Since all authorities below have not gone into this aspect of the matter, we think it necessary, in the interest of justice, to set aside all the orders passed by the authorities below and remit the matter back to the Assessing Officer, to decide afresh the question of disallowance under section 40A(2)(b) of the I.T. Act.

13. In this view of the matter, we direct :

(i)the assessee to file before Assessing Officer, within six weeks from today, an affidavit making statement on oath and annexing additional documents/statements to established that the price paid by it to M/s. Paras Gems is not excessive or unreasonable.

(ii)if the Assessing Officer is not satisfied by such affidavit and documents/statements adduced by the assessee, the Assessing Officer will call upon the assessee to lead oral evidence of these witnesses to establish its case. It will be open to the Assessing Officer to cross examine such witnesses, if he deems fit.

(iii)Similarly, if the Assessing Officer wants to rely on any documents, he shall furnish copies thereof to the assessee and permit the assessee to cross examine the author of that document, if the assessee so desires.

(iv)On conclusion of recording the evidence, the Assessing Officer shall furnish copies of the evidence to the assessee and thereafter hear the matter on merits in accordance ITA 5753/Mum/2014 5 with the principles of natural justice and pass appropriate assessment order on merits, in so far as it pertains to making disallowance under section 40A(2)(b) of the Income-tax Act.

14. We, accordingly, set aside the order of the Tribunal as well as the order passed by the CIT(A) and the original assessment order and restore the matter to the file of the Assessing Officer with direction to pass appropriate assessment order pertaining to disallowance under section 40A(2)(b) of the I.T. Act, in accordance with law by following the guidelines set out hereinabove.

15. Appeal is disposed of in above terms, with no order as to costs.”

The assessment u/s 143(3) r.w.s. 254 of the Act was completed by the A.O on 31st March, 2013 determining the total income at Rs. 1,39,18,530/- in second round of litigation, persuant to directions of the tribunal in vide orders dated 12-08-2011. The assessee went in appeal before the ld. CIT(A) in second round of litigation and raised specific ground in addition to other grounds, that principle of natural justice have not been adhered to by the AO while framing assessment order dated 31-03-2013 passed u/s 143(3) r.w.s. 254 of 1961 Act in second round of litigation and reasonable and sufficient opportunity was not given by the A.O. to the assessee in the second round of litigation . It is also averred in the said ground of appeal that submissions of the assessee filed before the AO in set aside proceedings were not considered by the AO in the light of judgment of Hon’ble Bombay High Court in the case of CIT v. Shatrunjay Diamonds(supra) while framing assessment order dated 31-03-2013 passed u/s 143(3) r.w.s. 254 of 1961 Act . It is averred before us by learned Senior counsel for the assessee that opportunity was granted in the set aside proceedings by the AO to the assessee at the fag when the matter was getting time barred. The grounds of appeal raised by the assessee before the ld. CIT(A) at ground no. 2 are reproduced hereunder:-

ITA 5753/Mum/2014 6 “2. The order passed by the AO is bad in law for the following amongst other grounds.

(i) the A.O. has not carried out the directions of the Hon'ble Income-tax Appellate Tribunal, Mumbai (ITAT) given in its order dated 12th August 2011. (ii) the A.O. has not considered the submissions filed by the appellant during the course of hearing in light of the judgment of the Mumbai High Court in the case of CIT vs. Shatrunjay Diamond s (261 ITR 258).

(iii) the A.O. has not given reasonable and sufficient opportunity to the appellant to substantiate its claim. The only opportunity given by the A.O. is on 20th March 2013 before passing the order. In doing so the A.O has not followed the principles of natural justice.

It was submitted by learned Senior Counsel for the assessee that notice u/s 142(1) of 1961 Act was issued by the A.O. on 6th February, 2013 to beat the deadline of assessment getting time barred on 31-03-2013. It is submitted that the said notice was received by assessee on 19-02-2013 , while date of hearing fixed as per the said notice was 13-02-2013 . The assessee filed its submissions before the A.O. along with various documents on 20th March, 2013 and said reply is placed at page No. 60 to 89 of the paper book filed with the tribunal. The ld. counsel submitted that the A.O. has passed assessment order u./s 143(3) r.w.s. 254 of the Act on 31.03.2013 in a haste in an hurried manner and no effective opportunity was given to the assessee by the AO while framing the assessment order dated 31-03-2013. It was also brought to the notice of the Tribunal that specific grounds were raised before the ld. CIT(A) that proper and adequate opportunity was not granted by the AO vide ground No. 2, wherein it was also submitted before the ld. CIT(A) that the A.O. issued notice u/s 142(1) of the Act on 6th February, 2013 for the first time fixing the hearing on 13th February, 2013 which was received by the ITA 5753/Mum/2014 7 assessee on 19th February, 2013 and thereafter the only opportunity was given by the A.O. was on 20th March, 2013 whereby the assessee had submitted its reply which has not been considered by the A.O.. It was also submitted by learned Senior counsel for the assessee that the ld. CIT(A) has not adjudicated ground No. 2 while passing appellate order dated 17-02- 2014, wherein the assessee has raised specific ground of non-adherence of principles of natural justice by the AO while framing assessment in set aside proceedings in second round of litigation .It was submitted that the ld. CIT(A) adjudicated the appeal in second round of litigation by deciding the issue on merits, vide appellate orders dated 17-02-2014. It is submitted by learned senior counsel for the assessee that there is no application of mind by the AO before framing assessment order u/s 143(3) r.w.s. 254 dated 31-03-2013 in set aside proceedings in second round of litigation. The learned Senior counsel prayed that under the circumstances , the matter may be set aside for the purposes of adjudication of ground no.2 raised by the assessee before learned CIT(A) in second round of litigation.

4. The ld DR submitted that if the ld. CIT(A) has not adjudicated the ground no 2 w.r.t. non granting of proper and adequate opportunity, the matter can be set aside to the file of the ld. CIT(A) as the said ground is not adjudicated by learned CIT(A).

ITA 5753/Mum/2014 8 who allowed the appeal in first round of litigation. The Revenue filed an appeal before the tribunal against the appellate order of learned CIT(A) in first round of litigation and the tribunal was pleased to pass an order dated 12th August 2011 in for assessment year 2003-04 wherein the issue before the tribunal as to the additions made u/s 40A(2)(b) of 1961 Act which is the only issue now in dispute between rival parties was set aside and remanded back to the file of the AO to be decided in the light of decision of Hon’ble Bombay High Court in the case of CIT v. Shatrunjay Diamonds (2003) 261 ITR 258(Bom), wherein it was held by Hon’ble Bombay High Court that in the case of additions u/s 40A(2)(b) of 1961 Act, the burden of proof is on the assessee to establish that the payment made by it to related party is not excessive or unreasonable. The Hon’ble Bombay High Court held that certain trade practices prevalent in Diamond Industry are within the knowledge of the assessee and the purpose behind legislation enacting Section 40A(2)(b) of 1961 Act was to provide for shifting of burden on the assessee in cases where the transactions are not at arms length. The relevant extract of Hon’ble Bombay High Court judgment in the case of Shatrunjay Diamonds(supra) as was referred to by tribunal while passing order dated 12- 08-2011, while remanding matter back to the AO is as under:

“12. Since all authorities below have not gone into this aspect of the matter, we think it necessary, in the interest of justice, to set aside all the orders passed by the authorities below and remit the matter back to the Assessing Officer, to decide afresh the question of disallowance under section 40A(2)(b) of the I.T. Act.

13. In this view of the matter, we direct :

(i)the assessee to file before Assessing Officer, within six weeks from today, an affidavit making statement on oath and annexing additional documents/statements to established that the price paid by it to M/s. Paras Gems is not excessive or unreasonable.

(ii)if the Assessing Officer is not satisfied by such affidavit and documents/statements adduced by the assessee, the Assessing Officer will call upon the assessee to lead oral ITA 5753/Mum/2014 9 evidence of these witnesses to establish its case. It will be open to the Assessing Officer to cross examine such witnesses, if he deems fit.

(iii)Similarly, if the Assessing Officer wants to rely on any documents, he shall furnish copies thereof to the assessee and permit the assessee to cross examine the author of that document, if the assessee so desires.

(iv)On conclusion of recording the evidence, the Assessing Officer shall furnish copies of the evidence to the assessee and thereafter hear the matter on merits in accordance with the principles of natural justice and pass appropriate assessment order on merits, in so far as it pertains to making disallowance under section 40A(2)(b) of the Income-tax Act.

14. We, accordingly, set aside the order of the Tribunal as well as the order passed by the CIT(A) and the original assessment order and restore the matter to the file of the Assessing Officer with direction to pass appropriate assessment order pertaining to disallowance under section 40A(2)(b) of the I.T. Act, in accordance with law by following the guidelines set out hereinabove.

15. Appeal is disposed of in above terms, with no order as to costs.”

The assessment u/s 143(3) r.w.s. 254 of the Act was completed by the A.O on 31st March, 2013 determining the total income at Rs. 1,39,18,530/- in second round of litigation, persuant to directions of the tribunal in vide orders dated 12-08-2011. The assessee went in appeal before the ld. CIT(A) in second round of litigation and had raised specific ground in addition to other grounds being ground no 2, that principle of natural justice have not been adhered to by the AO while framing assessment order dated 31-03-2013 passed u/s 143(3) r.w.s. 254 of 1961 Act in second round of litigation and reasonable and sufficient opportunity was not given by the A.O. to the assessee in the second round of litigation . It is also averred in the said ground of appeal that submissions of the assessee filed before the AO in set aside proceedings were not considered by the AO in the light of judgment of Hon’ble Bombay High Court in the case of CIT v. Shatrunjay Diamonds(supra) while framing assessment order dated 31-03-2013 passed u/s 143(3) r.w.s. 254 of 1961 Act . It is averred before us by learned senior ITA 5753/Mum/2014 10 counsel for the assessee that opportunity was granted to the assessee at the fag end by the AO in set aside proceedings when the matter was getting time barred. The grounds of appeal raised before the ld. CIT(A) at ground no. 2 reads as under:-

“2. The order passed by the AO is bad in law for the following amongst other grounds.

(iv) the A.O. has not carried out the directions of the Hon'ble Income-tax Appellate Tribunal, Mumbai (ITAT) given in its order dated 12th August 2011. (v) the A.O. has not considered the submissions filed by the appellant during the course of hearing in light of the judgment of the Mumbai High Court in the case of CIT vs. Shatrunjay Diamond s (261 ITR 258).

(vi) the A.O. has not given reasonable and sufficient opportunity to the appellant to substantiate its claim. The only opportunity given by the A.O. is on 20th March 2013 before passing the order. In doing so the A.O has not followed the principles of natural justice.

It was submitted by learned Senior Counsel for the assessee that notice u/s 142(1) of 1961 Act was issued by the A.O. on 6th February, 2013 to beat the deadline of assessment getting time barred on 31-03-2013. It is submitted that the said notice was received by assessee on 19-02-2013 , while date of hearing fixed as per the said notice was 13-02-2013 . The assessee filed its submissions before the A.O. along with various documents on 20th March, 2013 and said reply is placed at page No. 60 to 89 of the paper book filed with the tribunal. The ld. Senior counsel submitted that the A.O. has passed assessment order u./s 143(3) r.w.s. 254 of the Act on 31.03.2013 in a haste in an hurried manner and no effective opportunity was given to the assessee by the AO while framing the assessment order dated 31-03-2013. It was also ITA 5753/Mum/2014 11 brought to the notice of the Tribunal that specific grounds were raised before the ld. CIT(A) that proper and adequate opportunity was not granted by the AO vide ground No. 2, wherein it was also submitted before the ld. CIT(A) that the A.O. issued notice u/s 142(1) of the Act on 6th February, 2013 for the first time fixing the hearing on 13th February, 2013 which was received by the assessee on 19th February, 2013 and thereafter the only opportunity was given by the A.O. was on 20th March, 2013 whereby the assessee had submitted its reply on 20-03-2013 which has not been considered by the A.O.. It was also submitted by learned counsel for the assessee that the ld. CIT(A) has not adjudicated ground No. 2 while passing appellate order dated 17-02-2014, wherein the assessee has raised specific ground of non- adherence of principles of natural justice by the AO while framing assessment in set aside proceedings in second round of litigation .It was submitted that the ld. CIT(A) adjudicated the appeal in second round of litigation by deciding the issue on merits, vide appellate orders dated 17-02-2014. It is submitted by learned senior counsel for the assessee that there is no application of mind by the AO before framing assessment order dated 31-03-2013 passed u/s 143(3) r.w.s. 254 of 1961 Act in set aside proceedings in second round of litigation. The learned Senior counsel prayed that under the circumstances , the matter may be set aside for the purposes of adjudication of ground no.2 raised by the assessee before learned CIT(A) in second round of litigation.

We have observed that there is only one issue in dispute between rival parties which is w.r.t. purchase of rough diamonds by the assessee from M/s Polydiam NV Belgium to the tune of Rs. 8,51,41,549/- , who is an associated enterprise of the assessee registered in Belgium as the said entity is owned by Brother of the partner of the assessee. The additions were made u/s 40A(2)(b) of 1961 Act by holding that purchases were made at a price which is excessive and unreasonable and hence Section 40A(2)(b) of 1961 Act is attracted. The matter went to the tribunal in first round of litigation and the ITA 5753/Mum/2014 12 tribunal was pleased to pass an order dated 12th August 2011 in for assessment year 2003-04 wherein the issue before the tribunal as to the additions made u/s 40A(2)(b) of 1961 Act which is the only issue in dispute between rival parties was set aside and remanded back to the file of the AO to be decided in the light of decision of Hon’ble Bombay High Court in the case of CIT v. Shatrunjay Diamonds (2003)261 ITR 258(Bom), wherein it was held by Hon’ble Bombay High Court that in the case of additions u/s 40A(2)(b) of 1961 Act, the burden of proof is on the assessee to establish that the payment made by it to related party is not excessive or unreasonable. The Hon’ble Bombay High Court held that certain trade practices prevalent in Diamond Industry are within the knowledge of the assessee and the purpose behind legislation enacting Section 40A(2)(b) of 1961 Act was to provide for shifting of burden on the assessee in cases where the transactions are not at arms length. Thus, the assessee was fully aware of the issue which was remanded by tribunal way back in the year 2011 vide orders dated 12-08-2011 wherein issue was remanded by tribunal to the file of the AO for de-novo determination by the AO in second round of litigation in the light of Hon’ble Bombay High Court decision in the case of Shatrunjay Diamonds(supra) . The assessee was fully aware that burden of proof is on the assessee and an affidavit is also to be filed as per direction of Hon’ble Bombay High Court in the case of Shatrunjay Diamonds(Supra), but the assessee still chose not to file an affidavit before the AO in set aside proceedings. The said affidavit was filed by the assessee before learned CIT(A) in second round of litigation. The relevant extract of decision of Hon’ble Bombay High Court in the case of Shatrunjay Diamonds (supra) relied upon by the tribunal while passing order dated 12-08-2011 in first round of litigation is reproduced hereunder:

“12. Since all authorities below have not gone into this aspect of the matter, we think it necessary, in the interest of justice, to set aside all the orders passed by the authorities below ITA 5753/Mum/2014 13 and remit the matter back to the Assessing Officer, to decide afresh the question of disallowance under section 40A(2)(b) of the I.T. Act.

(i)the assessee to file before Assessing Officer, within six weeks from today, an affidavit making statement on oath and annexing additional documents/statements to established that the price paid by it to M/s. Paras Gems is not excessive or unreasonable.

(ii)if the Assessing Officer is not satisfied by such affidavit and documents/statements adduced by the assessee, the Assessing Officer will call upon the assessee to lead oral evidence of these witnesses to establish its case. It will be open to the Assessing Officer to cross examine such witnesses, if he deems fit.

(iii)Similarly, if the Assessing Officer wants to rely on any documents, he shall furnish copies thereof to the assessee and permit the assessee to cross examine the author of that document, if the assessee so desires.

(iv)On conclusion of recording the evidence, the Assessing Officer shall furnish copies of the evidence to the assessee and thereafter hear the matter on merits in accordance with the principles of natural justice and pass appropriate assessment order on merits, in so far as it pertains to making disallowance under section 40A(2)(b) of the Income-tax Act.

The A.O. issued notice u/s 142(1) on 6th February, 2013 whereby the date of hearing was fixed for 13.2.2013 . The said notice dated 06-02-2013 contained details of information sought by the AO but incidentally the assessee did not placed the said notice dated 06-02-2013 in the paper book filed with the tribunal (ref page 9/pb). The assessee has claimed that the said notice dated 06-02-2013 was received by it on 19-02-2013. We have observed from page 9 of paper book filed with the tribunal that the assessee gave letter ITA 5753/Mum/2014 14 to the AO dated 22-02-2013 , wherein it is averred that the said notice dated 06-02-2013 was received by the assessee on 19-02-2013 , wherein date of hearing was fixed by the AO for hearing on 13-02-2013 . In the said letter dated 22-02-2013 addressed by the assessee to the AO , it is also mentioned that there is a change of address of the assessee wherein the new address of the assessee is at Mehta Brothers Exports c/o Mr Rajesh Mehta , Matru Ashish, A/1, 14th Floor, 39, Napean Sea Road , Opp.Russian Embassy, Mumbai -400036. Thus, it appears that main cause of delay in serving of notice is the change in address of the assessee. The assessee has sought another date from the AO vide communication dated 22-02-2013 instead of submitting information as required by the AO vide notice dated 06-02-2013. The AO granted another date to the assessee on request made by the assessee fixing the date of hearing on 01-03-2013(ref page 10/pb). On 1st March 2013, when the assessee went to the office of the AO, it is claimed by the assesseee that the AO was not present in the office(ref page 10/pb) as is emerging from the records placed before us. The assessee should have filed its reply in tapal but instead the assessee again sought time from the AO vide telephonic call made to the AO requesting for time in filing replies , wherein the AO granted opportunity to the assessee to furnish details on 20-03-2013. The assessee submitted details on 20-03-2013 before the AO but again chose not to file an affidavit before the AO as was required to be filed as per directions of the Hon’ble Bombay High Court in the case of Shatrunjay Diamonds(supra). The assessee filed the said affidavit as was mandated by Hon’ble Bombay High Court in the case of Shatrunjay Diamonds(supra) before learned CIT(A). The assessee is well represented and assisted by Senior tax experts of the country and the assessee was fully aware of the matter getting time barred as per provisions of the Act on 31-03-2013. To claim that the AO advised the assessee that matter is not getting time barred on 31-03-2013(ref page 11/pb) and the assessee was not aware of the time barring of the proceedings on 31- 03-2013 , who is well represented and assisted by Senior tax experts of the ITA 5753/Mum/2014 15 country is too far-fetched. It is also not known when the assessee changed its address as stated in its letter dated 22-2-2013 to the AO and whether the Revenue was intimated by the assessee of the new address or not. These issues and claims requires finding of facts by the authorities below which requires investigation of facts which can be conclusively held after considering records and evidences. There was only one issue in dispute between rival parties and the assessee was fully aware of this issue since assessment was originally framed in the year 2006 and in any case tribunal vide its orders passed on 12-08-2011 itself had directed the assessment to be framed de-novo by the AO in light of Hon’ble Bombay High Court in the case of Shatrunjay Diamond(supra). As could be seen from the above discussions and our prima-facie findings , the assessee had also adopted a very casual and lax approach in set aside proceedings before the AO in second round of litigation and has not persued the matter with the seriousness it deserved , for which the assessee is to be blamed equally. These are our prima-facie finding on the grant of proper and adequate opportunity by the AO to the assessee in set aside proceedings based on documents produced before us . In any case , the ld. CIT(A) has not adjudicated ground No. 2 w.r.t. to grant of proper and sufficient opportunity to the assessee by the AO in set aside proceedings and to arrive at conclusive finding as to the grant of proper and adequate opportunity of being heard by the AO need investigation into records and evidences . In the fitness of the matter and fairness to both the parties, we after giving a careful and anxious thought to the entire material before us are of the considered view that this issue needs to be restored back to the file of the learned CIT(A) as the learned CIT(A) has not adjudicated this ground of appeal no 2 raised by the assessee before learned CIT(A) in second round of litigation , which ground of appeal is with respect to non grant of proper and adequate opportunity of being heard by the AO to the assessee , and the learned CIT(A) is directed to adjudicate this issue after proper verification, enquiry and examination including of the ITA 5753/Mum/2014 16 records before the AO and evidences. The powers of learned CIT(A) are co- terminus with the powers of learned AO. The learned CIT(A) is directed to adjudicate the issue in accordance with our directions as per law after giving adequate and proper opportunity to the assessee and the assessee is directed to produce cogent evidences in support of its defense, which evidences shall be admitted by learned CIT(A) in the interest of justice. We would like to clarify that the ld CIT(A) will adjudicate on this ground of non granting of adequate opportunity of being heard to the assessee by learned AO in second round of litigation un-influenced by our prima facie findings . The learned CIT(A) shall follow Rule 46A of Income-tax Rues, 1962 while adjudicating the issue. The learned CIT(A) after adjudicating ground no. 2 raised before it in second round of litigation regarding non grant of adequate opportunity etc. shall then based on his findings w.r.t ground no. 2 shall then decide on other grounds raised by the assessee on merits, if necessity so arises as required by law. Since, the assessee has prayed for relief against non-adjudication of ground no. 2 by learned CIT(A) as to non provision of effective opportunity by the AO in set aside proceedings, we have allowed this ground of the assessee for statistical purposes. We order accordingly.