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Income Tax Appellate Tribunal, ‘B’ BENCH,KOLKATA
Before: Shri Partha Sarathi Chaudhury & Shri Dr. Arjun Lal Saini
This appeal preferred by the assessee emanates from the order of the Ld. Commissioner of Income Tax (Appeals) in short [ Ld. CIT(A), 1, Kolkata dated 15-06-2016 on the following grounds:- 1) That the Order of the Learned CIT Appeals is arbitrary based on mere surmises bad in Law as well as on facts. 2) That the Learned CIT Appeals in not justified in confirming the Order passed by Income Tax Officer towards addition of Investments made by assessee in M/s. Rameshwaram Steel & Power Ltd amounting to Rs.5,00,000.00 as protective income without taking proper report from the Assessing officer of M/s. Rameshwaram Steel & Power Ltd for A.Y 2006-07. 3) The Learned CIT Appeals erred in levying interest U/s. 234B of the Income Tax Act, 1961. 4) The Learned CIT Appeals erred in levying interest U/s. 234C of the Income Tax Act, 1961. 5) That, on the facts and in the circumstances of the case, Ld. AO erred in initiating penalty proceedings u/s. 271(1)(1)( c) of the Income Tax Act, 1961. 6) That the Applicant craves the right to add to amend or to alter any of the ground or grounds of appeal before the hearing of the appeal.
M/s. Jindal Commercial Pvt. Ltd 2. The brief facts appearing in this case are that the assessee filed its return of income for the assessment year under consideration i.e 2006-07 on 29-11-2006 with returned income declared as Rs.6842/-. The case was reopened due to the reason recorded as appearing in the assessment order dated 28-03-2014. Therefore, it is not again reproduced herein that on the basis of reasons for reopening approval was taken from the appropriate authority for reopening the case notice u/s. 148 was issued and served on the assessee on 30-03-2013. Notices u/s. 143(2) and 142(1) of the Act were also issued to the assessee asking for details. In response to said notice, the ld.AR of the assessee appeared time to time to make various submissions, produce books of accounts and to explain the return. However, the assessment was completed u/s. 147/143(3) of the Act with total assessed income on protective basis at Rs.5,06,842/-.
At the time of hearing before us the ld.AR of the assessee has reiterated the submissions as placed in front of the AO during assessment proceedings and contended that the reasons recorded for reopening of the assessment were not justified in law that as appearing in the assessment order. The reasons recorded “During the course of search and seizure operation conducted on 10.10.2009 in Rameswaram Steel and Power Limited ( Monnet Group) 1000 shares was allotted for Rs.500000/- But from the Balance Sheet it cannot be ascertained as to whether the assessee company disclosed such investment. As such I have reason to believe that income of Rs.500,000/- has escaped assessment.” At the time of hearing before us he also argued that balance sheet being prepared towards the end of the year not at the time of investment. Further even in the re-assessment the additions were made on protective basis.
M/s. Jindal Commercial Pvt. Ltd 4. On the other hand, the ld.DR pointed out to the Bench that the impugned order of the CIT(A) has passed ex parte order. Therefore, the matter involved in this appeal should be set aside back to the file of the CIT(A).
We have perused the case records, facts and circumstances of the case. We have heard the rival submissions and we notice that before the CIT(A) no one was present for the appellant. The order of the CIT(A) states that the case was initially fixed for hearing on 18-05-2016 but none had attended on that day. The case was again fixed for hearing on 27-05-2016, the A.R of the appellant had attended and the case was adjourned on 06-06- 2016. Again the A.R of the appellant had appeared on 06-06- 2016, but adjourned to 14-06-2016. On 14-06-2016 none had attended. Under the circumstances, he had no option and decided the appeal on the basis of material available on record and passed an ex parte order.
On careful consideration of the totality of the facts and circumstances involved herein the parameter and justice shall apply if the rights and liabilities of the assessee are determined by the first appellate authority after proper representation by the assessee. We find that at the first appellate stage there was no appearance by the assessee before the ld. CIT(A). Therefore, the rights and liabilities were not determined by the CIT(A) since order passed exparte. The stand of the assessee was not put forward before him. Therefore, there was no proper adjudication as there was not proper representation of assessee. Under these circumstances, we arrive at our considered view for proper determination of rights and liabilities this case should be set aside back to the file of the ld. CIT(A) for his fresh adjudication after hearing the parties. Thus, final opportunity is granted to M/s. Jindal Commercial Pvt. Ltd assessee to represent its case properly before the CIT-A by proper representation on the basis of submissions. Thereafter, the CIT(A) may adjudicate the case fresh only. Therefore, we set aside the order of the CIT(A) back to his file to adjudicate the appeal afresh in accordance with law after giving proper opportunity of hearing to both the parties. We order accordingly. The grounds raised by the assessee are allowed for statistical purpose.
In the result, the appeal of the assessee is allowed for statistical purpose. Order pronounced in the open Court on 06-02-2017