BAKKAR SK.,MURSHIDABAD vs. ITO, WD-3, MURSHIDABAD, MURSHIDABAD

For the Appellant: N o n e For the Respondent: N o n e ORDER This appeal by assessee is arising out of order of CIT(A)-XXXVI, Kolkata, vide appeal No. 272/CIT(A)-XXXVI/Kol/Wd.3,MSD/11-12 dated 11.12.2012 for AY 2009- 10 on the following grounds: “I. FOR THAT the impugned Appellate Order dated 11.12.2012, passed by the Learned Commissioner of Income Tax (Appeals) - XXXVI, Kolkata which has been received by the appellant on 01.01.2013, is contrary to law and perverse . II. FOR THAT there were no deliberate latches and/or negligence on the part of the appellant. The appellant engaged Advocates, for conducting his case properly and diligently at the assessment stage inasmuch as at the appeal stage, who might have failed to appear before the authorities and for this your appellant cannot be blamed. III. FOR THAT the appellant could not represent his case properly before the authorities below in spite of having all the audited books of accounts and supportive documents with him. IV. FOR THAT from the assessment order itself it is revealed that the date of hearing has been fixed only once i.e. on 06.07.2011 which is not a justified reason to pass a best judgment assessment order under Section 144 of the Income Tax Act, 1961. V. FOR THAT the Learned Commissioner of Income Tax (Appeals) - XXXVI has wrongly upheld the unjustified estimated turnover of Rs. 8,00,00,000/- instead of actual turnover of Rs. 7,68,50,775/-. VI. FOR THAT neither of the authorities below has accepted the contention of the appellant that although the assessee is in the trading business but its nature or business is more likely as to commission agent and not as a trading business and that is why the assessee has only one customer in Andhra Pradesh for whom he works in West Bengal and for this reason only the gross profit rate of the assessee is only 0.73% and not more than that. VII. FOR THAT without any basis the learned Assessing officer has wrongly estimated gross profit rate @ 3% and the Learned Appellate Authority has wrongly increased the said gross profit rate @ 5%.

2 Bakkar Sk.AY 2009-10 VIII. FOR THAT both the Learned Commissioner of Income Tax (Appeals) – XXXVI as well as the learned assessing officer are wrong in making addition of Rs.9.80,000/- as unexplained cash deposit in bank account. IX. FOR THAT the Learned Commissioner of Income Tax (Appeals) - XXXVI has wrongly upheld the order of the assessing authority in disallowing the expenses as incurred by the appellant and duly shown in his audited books of accounts except a sum of Rs. 1,66,977/- under the head 'bank interest and bank charge' and Rs. 1,70,0001- on adhoc basis under the head 'other expenses'. X. FOR THAT the appellant craves leave to take additional ground/ grounds and / or to amend, to modify, to alter the ground 1 grounds of appeal before or at the time of hearing of this appeal, if necessary.”

2. None was present on behalf of the Revenue. The Ld. DR has sought for adjournment for each and every case that has been listed before me today by filing one letter mentioning the entire cause list in it in the “SMC” “B” Bench. The reason given is that the Ld. Sr. DR declined to receive files listed for hearing today from the Addl. CIT, Sr. DR, ITAT, Admn. as he was busy in some office work. As I am not convinced with such a reason and as I cannot allow the bench to collapse, I reject the application for adjournment and disposed of the matter ex parte qua the revenue.

3. In this case, none represented the assessee. I have perused the matter. There is a delay of 388 days in filing of the appeal. The assessee has filed a petition for condonation of delay. On perusal of the same, I am convinced that the assessee was prevented by sufficient cause in filing the appeal in time. Therefore, I condone the delay and admit the appeal.

4. I also find that the Ld. CIT(A) has passed an ex parte order as the assessee has not attended at the time of hearing before him. I am convinced that the assessee was prevented by sufficient cause for appearing before the Ld. CIT(A). Hence, this is a fit case for setting aside to the file of the Ld. CIT(A) for fresh adjudication in accordance with law after giving adequate opportunity of being heard to the assessee.

5. In the result, appeal of assessee is allowed for statistical purposes.

6. Order is pronounced in the open court. Sd/- (J. Sudhakar Reddy) Accountant Member

Dated : 31st January, 2017 Jd.(Sr.P.S.)