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Income Tax Appellate Tribunal, DELHI BENCH ‘E’ NEW DELHI
Before: SHRI N.K. SAINI & SHRI SUDHANSHU SRIVASTAVA
Stay No. 32/Del/2018 (IN AY: 2012-13 Net Agri Company Pvt. Ltd., vs ITO, LMJ House 9, Hanuman Road, Ward 18(1), New Delhi. New Delhi. (PAN: AADCN5792Q) (Appellant) (Respondent) Appellant by : Shri Naresh Jain, Advocate Ms Smrity Sahany, CA Respondent by : Shri R.S. Senapati, Sr. DR Date of Hearing: 15.02.2018 Date of Pronouncement: 27.02.2018 ORDER
PER SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER
This appeal has been preferred by the assessee against the order dated 12.09.2017 passed by the Ld. CIT (A)-6, Delhi for assessment year 2012-13.
The Ld. AR submitted that in this case, the assessment order was passed on 27.03.2015 u/s 144 of the Income Tax Act, 1961 (hereinafter referred to as "the Act") as the notices issued u/s 142(1) by the Assessing Officer were not served on the Stay No. 32/Del/2018 Assessment year 2012-13 assessee. It was submitted that since the notices were not served, there was no opportunity which could have been availed by the assessee to present its case before the Assessing Officer.
It was also submitted that even the assessment order was not served on the assessee and the assessee came to know of the assessment order having been passed ex parte on receiving the penalty notice from the Assessing Officer. He referred to Para 1 of assessment order and submitted that in that paragraph, the Assessing Officer has mentioned that the notice u/s 142(1) was issued to the assessee but it does not mention that the said notice was served on the assessee. It was further submitted that this ground was raised before the Ld. CIT (A) also but the Ld. CIT (A) did not accept the contentions of the assessee. It was further submitted that the assessee had sought to file additional evidences before the Ld. CIT (A) but the same was also refused by the Ld. CIT (A). The Ld. AR submitted that the assessee, in the interest of justice, should have been granted a proper opportunity before any addition was made. The Ld. AR sought a remit of the case to the assessing officer.
The Ld. Sr. DR opposed the plea of the assessee and submitted that the assessee had been negligent in appearing Stay No. 32/Del/2018 Assessment year 2012-13 before the Assessing Officer and, therefore, the assessee does not deserve a fresh opportunity.
We have heard the rival submissions and perused the material available on record. It is seen that the assessee is challenging the service of notice and none of the lower authorities have recorded a finding that the notice was, in fact, served upon the assessee. The Assessing Officer has only mentioned that the statutory notice u/s 142(1) was issued. Further, the assessee had prayed before the Ld. CIT (A) to admit the additional evidence/s under Rule 46A of the Income Tax Rules, 1962 in respect of additions made by the Assessing Officer. However, the Ld. CIT (A) rejected the prayer of the assessee on the ground that the assessee had not complied with the notices issued during the course of assessment proceedings. Thus, it is very much evident that the additions have been made without the assessee having been given an opportunity to reply to the inquiries which the Assessing Officer might have raised. The Ld. CIT (A) has also refused to admit the additional evidences which could have supported the cause of the assessee. Therefore, in the interest of justice, it is our considered opinion that the assessee should be given another opportunity to furnish proper evidences and Stay No. 32/Del/2018 Assessment year 2012-13 documents in respect of the additions pertaining to the issues which were the subject matter of the assessment order dated 27.03.2015. Accordingly, we deem it fit to restore the file to the office of the Ld. CIT (A) with a direction to admit the additional evidences which the assessee wishes to submit with respect to the additions which were challenged before him in its grounds of appeal. The Ld. CIT (A) is directed to adjudicate the appeal afresh after giving proper opportunity to the assessee to present its case. The Ld. AR has given an assurance at the Bench that the assessee will pursue the matter before the lower authorities with due diligence and cooperation. Accordingly, we deem it fit to allow the assessee’s appeal for statistical purposes by restoring the same to the file of the Ld. CIT (A).
As far as the stay connected with this appeal is concerned, since we have already allowed the assessee’s appeal for statistical purposes and restored the same to the file of the Ld. CIT (A), the stay petition of the assessee becomes in fructuous and is dismissed as such.
In the result, the appeal of the assessee is allowed for statistical purposes while the stay application is dismissed.
Stay No. 32/Del/2018 Assessment year 2012-13 Order pronounced in the Open Court on 27th FEBRUARY, 2018.