NATKHAT AGRO FOODS PVT. LTD.,KOLKATA vs. ITO, WARD-6(3), KOLKATA

Present for: Appellant by : N o n e Respondent by : Shri Sailen Samadder, Addl. CIT, Sr. DR Date of Hearing : 06.06.2024 Date of Pronouncement : 21.06.2024 O R D E R

PER RAKESH MISHRA, ACCOUNTANT MEMBER:

Natkhat Agro Foods Pvt. Ltd., AY: 2012-13 “1. For that the Ld. CIT(A), NFAC, Delhi has erred in law as well as on facts of the case by passing order u/s 250 of the I.T. Act, 1961 dated 16/11/2023 dismissing the appeal filed by the appellant and thereby confirming the addition of Rs.15,00,056/- by the Assessing Officer u/s 68 of the Income Tax Act, 1961 on the plea of non-compliance of fixation notice which is incorrect, baseless & false. Also the order passed by the Ld. CIT(A) dated 16/11/2023 is based on so many misleading factors.

2. For that the Ld. CIT(A), NF AC, Delhi has erred in law as well as on facts of the case by passing order u/s 250 of the LT. Act, 1961 on 16/11/2023 at 13:06:32 hours while adjournment for compliance of fixation notice was allowed upto 16/11/2023 and thereby Ld. CIT(A) has deliberately misused his power without objective and lawful application of mind and by ignoring natural justice to your appellant. Also this is a glaring example of whimsicality by the Ld. CIT(A), NF AC, Delhi. Your valuable and lawful verdict only can give justice to your appellant. Photocopy of adjournment letter alongwith Statement of Facts which was ready for submission before Ld. CIT(A) on 16/11/2023 itself is enclosed herewith for your kind perusal and record.

3. For that the Ld. CIT(A), NFAC, Delhi has erred in law as well as on facts of the case by dismissing the appeal filed by your appellant on the plea of non- compliance of 4 notices on different dates as no such notices were received by your appellant apart from notices for which adjournment was sought for. Also adjournment was allowed by the Ld. CIT(A), NFAC, twice-once for 7 days and then for 5 days during festive period which shows pre-conceived mind set of Ld. CIT(A) for dismissing the appeal filed by your appellant ignoring the rules of natural justice.

4. For that the Ld. CIT(A), NFAC, has erred in law as well as on facts of the case by dismissing the appeal of such a company which was non-existence at the time of passing the order as the company was struck off from the list of Registrar of Companies by the Govt. of India w.e.f. 01/04/2018.

6. For that the appellant craves leave to adduce, modify and/or alter the grounds at or before hearing.”

5. Ground Nos. 1 to 3 relate to confirming the addition of Rs.15,00,056/- by the Assessing Officer u/s 68 of the Act, while ground no. 4 relates to dismissing the appeal of a non-existing company at the time of passing of the order as the company was struck off from the list of Registrar of Companies w.e.f. 01.04.2018. 5.1. Briefly stated facts as culled out from records are that the assessee, a private limited company filed its return of income on Natkhat Agro Foods Pvt. Ltd., AY: 2012-13 30.09.2012 declaring a total loss of Rs.46,892/-. Subsequently, on receipt of information from Investigation Wing with respect to the assessee’s receipt of Rs.15,00,056/- from one M/s. Veshnawy Vyapaar Pvt. Ltd. during the assessment year in question, the case was reopened and statutory notices were issued from time to time. Since there was no response from the assessee during the assessment proceedings, the AO proceeded to complete the assessment ex parte and passed the assessment order by holding that the credit of Rs.15,00,056/- in the book of accounts of the assessee stood unexplained and it was added to the total income of the assessee. Aggrieved, the assessee preferred an appeal before the Ld. CIT(A), who confirmed the action of the AO by respectfully following the ratio of decisions relied upon in his order at paras 18 and 19 and also the facts and circumstances of the case. As no documentary evidence whatsoever, satisfying the three conditions relevant to section 68 was filed, he held that the order of the AO does not suffer from any infirmity or perversity and therefore, the same did not call for any interference and the Ld. CIT(A) confirmed the addition as made by the Ld. AO. Aggrieved, the assessee is now in appeal before the Tribunal. 5.2 We have heard the Ld. CIT, DR and have carefully gone through the material available on record. A perusal of the order of the Ld. CIT(A) shows that there was no response to various notices issued to the e- mail sushilkumarpurohit@rediffmail.com while on the last date, an adjournment was sought. The Ld. CIT(A) relying upon the ratio of the decisions in the case of Susham Singla Vs. ACIT 33 ITR (T) 449 (Chandigarh Tribunal) and Ashokji Chanduji Thakur Vs. PCIT reported in 130 taxmann.com 131 (SC) and observing that the assessee was not willing to pursue the case and as per the legal maxim, the law aids those who are vigilant, not those who sleep upon their rights, in the Natkhat Agro Foods Pvt. Ltd., AY: 2012-13 subsequent paragraphs, the Ld. CIT(A) has given the background of the case and has also decided the issue on merits. 5.3. We note that on 23.04.2024, the assessee had filed a paper book along with written submission. A perusal of the order of the Ld. AO shows that a notice u/s. 148 of the Act was issued but the assessee did not file any return of income. This notice was issued on the basis of information received from the Dy. Director of Investigation, Unit-1(3), Kolkata. As per the assessment order, the reasons were also recorded before issuing the notice. Since the assessee failed to file any explanation, therefore, a sum of Rs.15,00,056/- was added as unexplained cash credit. The reasons for the addition are mentioned in para 3 of the assessment order. Apparently, the addition was made on account of non-representation before the Ld. AO which has been confirmed by the Ld. CIT(A) again on account of non-prosecution of the appeal. Hence, in order to be fair to both the assessee and the Ld. AO, the order of the Ld. CIT(A) is set aside and the Ld. AO is directed to pass an order afresh after granting a reasonable opportunity of being heard to the assessee. The assessee is also directed not to seek unnecessary adjournment.