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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI VIJAY PAL RAO & SHRI B.M. BIYANI
Per Vijay Pal Rao, JM:
These two appeals by the Assessee are directed against two separate orders of Commissioner of Income Tax (Appeal), National Faceless Appeal Centre (NFAC) dated 23.01.2023 & 06.02.2023 for A.Ys.2009-10 & 2010-11 respectively.
The assessee has raised common grounds in these two appeals except the quantum of addition. The grounds raised for A.Ys.2009- 10 are reproduced as under:
ITANo.132 & 133/Ind/2023 Lilasons Breweries Ltd. “1.That on the facts and in the circumstances of the case, the learned Commissioner of Income Tax (Appeals) erred in dismissing the appeal without affording proper opportunity of being heard to the assessee.
2. That on the facts and in the circumstances of the case, the learned CIT (A) erred in confirming the action of the AO of reopening the case u/s 147 of the Act by issuing the notice u / s 148 without considering the fact that in this case assessment u/s 153 A has already been made and the documents on the basis of which addition made were already considered by the then A.O. and no new facts came later on which could form the basis for reopening the case. 3.That on the facts and in the circumstances of the case, the learned CIT(A) erred in confirming the addition of Rs.2,01,44,333/- ex-party without affording proper opportunity to the assessee and without having jurisdiction for passing the order as the assessment order is related to search assessment.
That on the facts and in the circumstances of the case, the order passed by the learned CT(A) confirming the addition of Rs.2,01,44,333/- made on the basis of loose papers found in the premises of director of the company is not justified because the same were not found in the premises of the assessee company and there is no direct nexus of the same with the assessee.
5. That on the facts and in the circumstances of the case, the learned CIT(A) erred in confirming the action of the AO for holding that since the company had made payment of Rs.44,60,000/- to Shri Arun Lila and his family for 21% of shares holding in AY 2009-10, the total payment which must have been made to other members of the Lila Group works out to Rs.2,0 1,44,333/- for the entire holding of 94.85% of shares of assessee company. Thus, the presumption is unjust, unfair and not tenable in the eye of law.
That on the facts and in the circumstances of the case, charging of interest u/s 234B and u / s 234D is not justified.
ITANo.132 & 133/Ind/2023 Lilasons Breweries Ltd. 7.That on the facts and in the circumstances of the case, initiation of penalty proceedings u/s 271(1)(c) is not justified. 8. That the appellate craves, leave to add, to urge, to alter or to amend any of the grounds of appeal on or before the date of hearing.”
3 At the time of hearing Ld. AR of the assessee has submitted that the CIT(A) has dismissed the appeal of the assessee for want of prosecution/reply to the notices issued by the CIT(A) and grounds raised by the assessee before the CIT(A) were not adjudicated on merits by a speaking order. He has pointed out that the CIT(A) has stated to have issued four notices to the assessee out of which the first notices was issued on 19.01.2021 during the period of Covid Pandemic and the remaining three notices were issued in the month of November 2022 within span of 20 days and therefore, the assessee was not given an effective opportunity of hearing to file the reply. Thus, he has pleaded that when the CIT(A) has not adjudicated the grounds of appeal on merits thus the impugned orders passed by the CIT(A) be set aside and matter may be remanded to the record of the CIT(A) for deciding the appeal of the assesse afresh on merits after giving appropriate opportunity of hearing to the assessee.
4. On the other hand, ld. DR has not raised any serious objection if the matter is remanded to the record of CIT(A) for fresh adjudication of the appeals of the assesse.
ITANo.132 & 133/Ind/2023 Lilasons Breweries Ltd.
We have considered rival submissions and careful perused the impugned orders of the CIT(A). The CIT(A) has passed identical orders for both the assessment years. In para 3 of the impugned order the CIT(A) has referred the notices issued to the assessee as under: S.No. Date of issue of notices/e- Date of Remarks mails compliance 1 19.01.2021 27.01.2021 No response 2 07.11.2022 14.11.2022 No response 3 17.11.2022 23.11.2022 No response 4 28.11.2022 07.12.2022 No response
6. It is clear that the first notice was issued by the CIT(A) in the faceless appeal proceedings on 19.01.2021 which was Covid pandemic period and thereafter the next notice was issued by the CIT(A) after a period of about one year 10 months on 07.11.2022 and then on 17.11.2022 & 28.11.2022. Therefore, the last three notices were issued by the CIT(A) within a period of 20 days in the month of November 2022 and then passed the impugned orders in para 4 to 4.2 as under: “4. Ground Nos. 1 to 4: I have considered the facts of the case, records and submissions of the appellant.
4.1 The appellant had contested on the technical ground of reopening and addition made by the AO on merit also. As per the assessment order this case was assessed u / s 153A rws 143(3) of the Act on 25.03.2013. The case was reopened u/s 147 of the Act after following the due procedure. The objections filed by the appellant were disposed off by the AO through Page 4 of 6
ITANo.132 & 133/Ind/2023 Lilasons Breweries Ltd. speaking order dated 21.03.2016. The AO had considered the various loose papers & statements recorded during/after search as well as the order of the CIT (A). The case of appellant was assessed u/s 143(3) r.w.s. 147 and addition of Rs.2,01,44,333/- was made on account of unaccounted payments made by the appellant to the family members of Lilasons Group, hence this appeal on merit.
4.2 During the course of appellate proceedings, sufficient opportunities were given to the appellant, however, no submissions/evidences/documents have been filed by the appellant to substantiate the grounds of appeal. The appellant was given specific opportunity to file any details filed by him before any authority physically/online earlier as no replies of the appellant are existing in the online system. Thus, in the absence of any submission/documents, I have no material to interfere with the reopening u/s 147 and the subsequent addition made by the AO on the basis of seized material & various statements recorded. Accordingly, the addition of Rs.2,01,44,333/- made by the AO on account of unaccounted payments is hereby "confirmed" and these grounds of appeal are "dismissed".”
7. Thus, it is clear that both appeals of the assessee were dismissed due to non-submissions of evidence, documents/reply to the notice issued by the CIT(A) in summary manner and consequently the additions made by the AO were confirmed and appeals of the assessee were dismissed. Thus, it is clear that the impugned orders passed by the CIT(A) dismissing the appeals of the assesse summarily without passing a speaking orders on each and every grounds of the assesse’s appeals and further without discussing any fact and objections raised by the assessee then the impugned orders passed by the CIT(A) are not inconfirmity with the ITANo.132 & 133/Ind/2023 Lilasons Breweries Ltd. provisions of section 250(6) of the Act. Accordingly in the facts and circumstances of the case and in the interest of justice we set aside the impugned orders of the CIT(A) and remand the matters to the record of the CIT(A) for fresh adjudication of the appeals of the assessee for assessment years 2009-10 & 2010-11 on merits after giving an appropriate opportunity of hearing to the assessee.
In the result, appeals of the assessee are allowed for statistical purposes.
Order pronounced in the open court on 05.01.2024.