M/S SAVITRI ISPAT(INDIA) PVT LTD.,KOLKATA vs. ITO, WARD-3(2), KOLKATA, KOLKATA

The only issue in this appeal is to be decided as to whether the CIT-A is justified in confirming the impugned additions made by the AO without giving adequate opportunity of hearing to the assessee in the facts and circumstances of the case. M/s. Savitri Ispat (I) Pvt.Ltd 1

The assessee is a company dealing in installing plant for production of M.S Ingot. The assessee filed its return of income on 30-11-2006. Thereafter, notices u/s. 143(2) & 142(1) of the Act were issued. According to AO, the assessee did not make full compliance of the questionnaire issued in the notice issued u/s. 142(1) of the Act. The AO determined the total income of assessee at Rs.15,00,000/- on account of unexplained cash credit and to that effect an order u/s. 144 of the Act was passed on 31-12-2008.

In the first appellate proceedings the CIT-A dismissed the appeal of assessee, wherein he confirmed the impugned addition as made by the AO.

We have heard the rival submissions and perused the material available on record. It is noticed from the impugned order of the CIT-A that before him neither the assessee nor its authorised representative appeared on six occasions and it is also noticed that the notice fixing the hearing on 9.2.16 was returned unserved. We find that on 08-03-2016 the A.R appeared and sought time. Accordingly, the case adjourned to 26.04.2016 and thereafter, on 04.05.2016 none appeared before him. While disposing off the appeal the CIT-A has relied on the decision of the Hon’ble Supreme Court in the case of H.M Esufali H.M Abdulali reported in (1973) 90 ITR 271 for the proposition that the appellate authority cannot substitute its own judgement in place of the judgement of the AO unless it is shown that the judgement of the AO was biased, irrational, vindictive or capricious. Before us the ld.AR submits that the above judgment of the Hon’ble Supreme Court in the case of supra does not apply to the present case and submitted that the assessee has engaged Mr. T.K Kejriwal, A/R to prosecute its appeal and accordingly the assessee was under the impression that the Counsel must be looking after the matter before the CIT-A. However, on receipt of the order of the CIT-A the assessee came to know that the Counsel did not pursue the matter M/s. Savitri Ispat (I) Pvt.Ltd 2 before the CIT-A. However, the assessee immediately changed the Counsel and file the appeal before the Tribunal. The Ld.AR further humbly requested to remit the matter to the CIT-A for fresh adjudication and assured to attend the proceeding before the CIT-A. An affidavit was filed to that effect in support of the contention above. Having perused the same, taking into consideration the facts and circumstances of the case, submissions of the Ld.AR as submitted before us and in the interest of justice, we deem it fit and proper to remand the case to the file of the CIT-A for fresh adjudication and to pass order as per law. The assessee shall be at liberty to file requisite evidences, if any, to substantiate its claim. The assessee is also directed to co-operate in further appellate proceedings without seeking any further adjournment.