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Income Tax Appellate Tribunal, “B” BENCH: KOLKATA
Before: Shri Partha Sarathi Choudhary, JM & Dr. A. L. Saini, AM]
Date of hearing: 06.02.2017 Date of pronouncement: 06.02.2017 For the Appellant: N o n e For the Respondent: Md. Ghayas Uddin, JCIT ORDER
Per Dr. A. L. Saini, AM:
The captioned appeal filed by the assessee pertaining to Assessment Year 2006-07, is directed against the order passed by the Ld. CIT(A)-I, Kolkata in Appeal No. 791/CIT(A)- 1/Ward-1(1)/2014-15 dated 16.06.2016, which in turn arises out of assessment order passed by the ITO, Ward-1(1), Kolkata u/s.144/147 of the Income-tax Act, 1961 (hereinafter referred to as the “Act”) for AY 2006-07, dated 31.03.2014 .
The facts of the case qua the assessee are that the assessee’s case was reopened because of information received from the ACIT, Cir-1(1), Raipur stating that during the search assessment in the case of Cosmos Group it was found that the assessee company had paid Rs.7,50,000/- as share application money to M/s. Amarnath Ispat Pvt. Ltd. Further investigation was made during the search proceeding as well as during search assessment proceeding and it was concluded that the above said share application money was bogus. The source of share application money amounting to Rs. 7.5 lacs remained unexplained in the hands of the assessee company, as per enquiry made during the search proceedings in the case of Cosmos Ispat Group of companies. During the assessment proceedings none appeared on behalf of the assessee, therefore, the AO has completed the assessment u/s. 144/147 of the Act by making the addition of Rs.7.5 lacs being unexplained share application money. Aggrieved from the order of the AO, the assessee filed appeal before the Ld. CIT(A), who has confirmed the order passed by the AO by observing the following:
“The hearing in this case was initially fixed on 17.05.2016 but on the appointed date none had attended. The case was again fixed on 31.05.2016 and on that date the A.R. of the appellant
Deepraj Vinimay (P) Ltd..AY. 2006-07 had attended and sought for adjournment and the case was adjourned for 15.06.2016. But on 15.06.2016 the A.R. of the appellant had neither appeared nor filed any written submission. Under this circumstances, it appears that the appellant does not want to pursue this appeal; therefore, I have no option but to decide the appeal on merits on the basis of material available on record. The present appeal Is against the order u/s. 143(3) passed by the A.O. I have carefully perused the grounds of appeal and the order of the A.O. as already discussed above, the appellant has failed to offer any explanation for submission in support of the grounds raised in this appeal nor any supporting evidences were produced by him despite adequate opportunity having been provided. In this connection, reliance may be placed upon the decision of the Hon'ble Supreme Court in the case of H.M. Esufali H. M. Abdulali (1973) 90 ITR 271 wherein the Hon'ble Court has held that the appellate authority cannot substitute its own judgement in place of the judgement of the A,O. unless it Is shown that the judgement of the A.O. was biased, Irrational, vindictive or capricious. In the instant case, the appellant has not able to show that the decision of the A.O. was arbitrary, biased, irrational, vindictive or capricious without any basis. I find no reason to interfere with the decision of the A.O. In the result, appeal filed by the appellant is "Dismissed".
3. During the appellate proceedings before the Ld. CIT(A) none appeared on behalf of the assessee, therefore, the Ld. CIT(A) has passed the ex parte order confirming the addition made by the AO. Not being satisfied with the order of the Ld. CIT(A), the assessee is in further appeal before us and has taken the following grounds of appeal:
“1. That the order passed by the Ld. CIT(A)-1, Kol is bad in law as well as in facts of the case.
2. That the Ld. CIT(A)-1, Kol erred in law as well as on facts by not giving the appellant, a proper opportunity of being heard and the same is against the principles of natural justice.
That the Ld. CIT(A)-1, Kol erred in law as well as on facts by confirming the addition made by the Ld. Assessing Officer to the tune of Rs.750000/- being share application money raised by the appellant.”
The said appeal was listed for hearing before SMC bench on 06.02.2017. None appeared on behalf of the assessee.
Ld. DR for the revenue has stated that the Ld. CIT(A) has passed the order ex parte without giving an opportunity of being heard. Therefore, considering the principles of natural justice the case should be sent back to the AO to examine the issue afresh and pass the order after considering the submissions, documents and evidence filed by the assessee. Although in this appeal none appeared on behalf of the assessee but Ld. DR for the revenue
Deepraj Vinimay (P) Ltd..AY. 2006-07 has taken the view and suggested us to send the case back to the file of the AO to examine the issue afresh. We also noticed that the assessee neither appeared before the AO nor appeared before the Ld. CIT(A), therefore, the AO has also passed an ex parte order u/s. 144 of the Act and Ld. CIT(A) also passed an order ex parte without the presence of the assessee. The Bench has taken the view that this case was listed for hearing on 25.11.2016 but none was present on behalf of the assessee nor any adjournment application filed by the assessee. Therefore, again the notice was sent by the Registry of the Tribunal through RPAD fixing the appeal on 09.01.2017. On this date also none appeared on behalf of the assessee. After considering the view of the Ld. DR for the revenue, we set aside the orders of the authorities below and remit the matter back to the file of the AO to examine the issue afresh after considering the evidence, details and the submissions submitted by the assessee. Accordingly, the appeal of assessee is allowed for statistical purposes.
In the result, the appeal of the assessee is allowed for statistical purposes.