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Income Tax Appellate Tribunal, “D”, BENCH KOLKATA
Before: SHRI S.S.VISWANETHRA RAVI, JM & DR. A.L.SAINI, AM
O R D E R
Per Dr. Arjun Lal Saini, AM:
The captioned appeal filed by the Assessee pertaining to Assessment Year 2009-2010, is directed against the order passed by ld. CIT(A)-Budwan, Kolkata in Appeal No.289/CIT(A)/Asl/Wd.2(4)/Bwn/2011- 12, dated 31.05.2016, which in turn arises out of an order passed by the Assessing Officer (AO) Under Section 143(3) of the Income Tax Act 1961, (hereinafter referred to as the ‘Act’), dated 22.12.2011.
Brief facts of the case qua the assessee are that the assessee filed its return of income for the A.Y.2009-2010 on 30.09.2009 declaring total income of Rs.2,26,720/-. The case of the assessee was processed u/s 143(1) on dated 28.10.2010. Later on assessee’s case was selected for scrutiny and the AO has completed the assessment by making the addition on account of Activation Charges u/s.40(a)(ia) and addition u/s.43B on account of outstanding service tax etc.
Ambika Prasad Roy Chowdhury 3. Aggrieved from the order of AO, the assessee filed an appeal before the ld. CIT(A), who has dismissed the appeal filed by the assessee observing the followings :-
“A notice of hearing was initially issued to the appellant on 10.12.2015 fixing for hearing on 12.01.2016. Copies of ITNS-51 along with Form No. 35 containing grounds of appeal and statement of facts and also a copy of notice u/s. 250 were served to the A.O. for his information and necessary comments. Further hearing notices were issued on 21.01.2016, fixing for hearing on 10.02.2016. Further hearing notice was issued on 16.02.2016 as one final opportunity given to the assessee fixing the hearing on 02.03.2016, none appeared.
The dates of hearing and of non-attendance on the part of the appellant are summarized below:
Sl.No Date of fixing Date of hearing Reasons offered by appellant . 1. 10.12.2015 12.01.2016 None 2. 21.01.2016 10.02.2016 None 3. 16.02.2016 02.03.2016 None
Under the circumstances, it appears that the appellant does not want to pursue this appeal, to add to this is the fact that this appeal is a very old appeal, pending for several years. Therefore, I have no option but to decide the appeal on merits on the basis of material available on record.”
Not being satisfied with the order of ld. CIT(A), the assessee is in further appeal before us and has taken the following grounds of appeal :-
1. Whether on the facts and in the circumstances of the case, the ex-parte dismissal of appeal matter on the alleged ground of non - appearance was warranted in the face of pertinent fact of pushing over of appeal cases on appointed dates without hearing and without noting attendance by Commissioner of Income - Tax.
2. Whether on the facts and in the circumstances of the case, the Commissioner of Income - Tax was justified in confirming disallowance of activation charges which in reality represents discounting charges in respect of transactions between Principal to Principal of Rs.963800 under section 40(a)(ia) of the Act on the wrongful premises of application of 194H of the Act. 3. Whether on the facts and in the circumstances of the case confirmation of disallowance of unpaid Service Tax of Rs.83958 under section 43B of the Act without ascertaining the pertinent Ambika Prasad Roy Chowdhury fact of charge in Profit & Loss Account and or claim in the Return of income was justified on the part of Commissioner of Income - Tax.
4. Whether on the facts and in the circumstances of the case was it justified on the part of Commissioner of Income - Tax to confirm estimated disallowances of 25 percent of gross expenditure of Rs. 96364 incurred for maintenance of motor car and motor cycle on the ground of probable personal expenses.
5. For that the Appellant craves lease to add, alter and or prefer additional grounds and to submit relevant papers at the time of hearing of appeal matter.
Although, in this appeal the assessee has raised five grounds of appeal but at the time of hearing the solitary grievance of the assessee has been confined to the issue that ld. CIT(A) has passed ex-parte order without presence of the assessee.
6. Ld. AR for the assessee submitted before us that the assessee has changed its address, therefore, he could not get the notices issued by the CIT(A), therefore, ld. AR for the assessee requested the Bench, to remit the case back to the file of ld. CIT(A) to re-adjudicate the appeal afresh.
The Ld. AR also stated before us that the ld. CIT(A) has passed the order in hurry stating that the assessee’s appeal is very old and pending for several years, therefore, ld. AR for the assessee has submitted that the rights and liabilities of the assessee has not been determined by the ld. CIT(A), therefore, it is appropriate to send the case back to the file of ld. CIT(A) to re-adjudicate the issue afresh.
Ld. DR for the Revenue has primarily relied on the stand taken by the ld. CIT(A), however, he has agreed to remit the case back to the file of ld. CIT(A) to re-adjudicate the issue afresh.
Ambika Prasad Roy Chowdhury 8. Having heard the rival submissions, perused the material on record, we are of the view that there is merit in the submissions of ld. AR for the assessee, as the proposition canvassed by ld. AR for the assessee are supported by the facts narrated by him above. As, the Ld. AR for the assessee has pointed out that the rights and liabilities of the assessee has not been determined by the ld. CIT(A) because of non-service of notice of hearing on the assessee. As the assessee has changed the address and, therefore, he could not get notice, and therefore, considering the principle of natural justice, we are of the view to remit the case back to the file of ld. CIT(A) to re-adjudicate the issue afresh after giving proper opportunity of being heard, to the assessee.
In the result, appeal filed by the Assessee is allowed for statistical purposes. Order pronounced in the open court on this 03/03/2017.