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Income Tax Appellate Tribunal, “A” BENCH,
Before: SHRI D.T. GARASIA, JM & SHRI MANOJ KUMAR
O R D E R
PER D. T. GARASIA, JM:
This appeal is filed by the Assessee against the order of CIT(A)-20 Mumbai, dated 22/11/2012 arising out of order of DCIT-9(2) Mumbai dated 30/12/2011 passed u/s 143(3) of the Income Tax Act, 1961 for the Assessment Year 2009-10.
The assessee has filed the appeal on following grounds:-
2 Lakshya Level Pvt. Ltd.
1. The Commissioner of Income Tax (Appeal)-20 (‘CIT(A)) erred in confirming the passing of the assessment order u/s 144 of the Income Tax Act, 1961 (‘the Act’) by the Assessing Officer without affording any opportunity of being heard to the appellant.
2. The CIT(A) erred confirming the disallowance made by the Assessing Officer of Rs.2,57,875/- under provisions of section 14A r.w. Rule 8D of the Act. 3. The CIT(A) erred in confirming the addition of Rs.22,68,11,974/- made by the Assessing Officer on account of outstanding sundry creditors due to non verification. 4. The CIT(A) erred in confirming addition of Rs.12,23,00,000/- on account of unexplained investment u/s 69 of the Act. 5. The CIT(A) erred in confirming the addition of Rs.7,70,000/- on account of unexplained cash credit u/s 68 of the Act. 6. The CIT(A) erred in confirming the rejection of the appellant’s claim for deduction of Rs.3,50,000/- under Chapter VIA of the Act. 7. The Dy. Commissioner of Income Tax-(2) (‘the DCIT’) erred in charging interest u/s 234B and 234C of the Act. 3. The short facts of the case are as under:- The assessee has filed the return of income on 30/09/2009. The assessee’s case was selected for scrutiny and notice u/s 143(2) was issued on 28/09/2010 and served on the assessee by affixture. Notice u/s 142(1) was issued along with a questionnaire on 29/07/2011 asking the assessee to submit various details on or before 11/08/2011. However, no details were submitted and no compliance was made. Thereafter final notice on 22/11/2011 was issued and the assessee was asked to submit the details thereof. Again there was no compliance, therefore, matter was decided ex- parte. Matter carried to CIT(A) and before CIT(A) the assessee did not remain present. Therefore, the matter was decided ex-parte.
3 Lakshya Level Pvt. Ltd.
During the course of hearing, the Ld. AR submitted that the assessee has filed the return of income but sometime in 2009 Government Authorities including Crime Branch, Orissa Police initiated actions under various provisions of other law pertaining to money circulation, chits and prizes. The business of the assessee company was abruptly stopped due to restrictions placed by such Government Authorities on an erroneous belief that the assessee Company was also engaged in the aforementioned activities. All the Directors of the Company were then occupied in attending the various investigations carried out by such Government Authorities as well as Crime Branch, Orissa Police and cases filed in the Hon’ble Orissa High Court. The office of the assessee company was also shut down. The assessee’s case was selected for scrutiny. However, the assessee did not receive any notices. Before CIT(A), the assessee could not appear for the above reasons therefore, the assessee must be given due opportunity of hearing and the matter may be restored to the file of AO to decide the matter afresh.
The Ld. DR objected to the request of the assessee on the ground that the assessee has filed many documents before the Tribunal today. The Ld. DR submitted that the assessee did not remain present before the CIT(A) and as the assessee is not interested in perusing the appeal, the addition may be confirmed and in the alternative, if the appeal is restored to the file of CIT(A) it may be subject to heavy conditions. 6. We have heard the rival contention of both the parties. Looking to the facts and circumstances of the case, we find that in this case the Assessing Officer has passed the order u/s 144 of the Act and similarly the assessee did not remain present before CIT(A), therefore, the appeal was also decided ex-parte. The assessee is engaged in marketing business. The assessee has did not remain present before all the authorities. Therefore, in 4 Lakshya Level Pvt. Ltd. ITA no. 970/M/2015 the interest of justice and fair play we restore this matter to the file of CIT(A). The CIT(A) is directed to decide this appeal on merit. The CIT(A) is also directed to consider all the documents filed before the Tribunal and the CIT(A) is directed to consider whether these documents are to be admitted or not. The CIT(A) is directed to decide the matter afresh if he thinks deem fit by calling a remand report from the AO. The assessee is directed to remain present before CIT(A) within two months from the date of receipt of this order. The CIT(A) is directed to decide the matter afresh after giving due opportunity of hearing to the assessee, as per law. In the result, appeal is allowed for statistical purpose. 22nd March 2017. Order pronounced in open court on