PUSHPKANT COMMODITIES PVT. LTD.,KOLKATA vs. ITO, WD-2(1), KOLKATA, KOLKATA

The above mentioned two appeals relate to the same assesse, different assessment years, Common issues involved, therefore they have been clubbed and heard together and a consolidated order is being passed for the sake of convenience and brevity.

In both the appeals the common issue raised by the assessee relates to an exparte order passed by the ld. CIT(A) without taking into account the written submissions of the assessee. However, in these appeals the assessee has raised multiple grounds of appeal, but at the time of hearing the solitary grievance of the assessee has been 2 & 952/Kol/2016 Pushpkant Commodities (P)Ltd. A..Y.2006-07 & 2007-08 confined to the issue which relates to an ex-parte assessment without taking into account the written submissions of the assessee.

The facts of the case are stated in brief. The assessee is a private limited company and derives income from shares and derivatives trading. The AO passed the assessment order for both the years holding that the assessed did not produce the relevant documents and evidence to support its claim. Aggrieved from the order of the ld. AO, the assessee filed an appeal before the ld. CIT(A), who has also passed the order without taking into account the written submissions submitted by the assessee. The ld. CIT(A) has confirmed the action of the AO in both the years. Therefore, aggrieved from the order of the ld. CIT(A) the assessee is in further appeal before us.

As we have explained in our earlier para that the main grievance of the assessee in this case is that the ld. CIT(A) has passed the order ignoring the written submissions of the assessee. The ld. AR for the assessee has submitted that he has submitted the written submissions on dated 4th August, 2011 in both the cases. However, the assessee could not attend the subsequent hearings of the ld. CIT(A) because of some reasons. The ld. CIT(A) sent the remand report to the AO and the AO could not submit the remand report to the ld. CIT(A) on time because the assessee did not attend the office of the AO and did not file the evidence and documents required by him. The ld. AR further argued that he could not attend the office of the AO to submit documents, because he did not get the notice from the AO, that is, the AO failed to send the notice to the assessee. Therefore, the assessee was not aware about the assessment proceedings. There is no mistake from the assessee’s side because he was ready to cooperate with the AO and he was ready to reply the remand report but he could not do so because he did not get the notice from the AO. The ld. AR further argued that he has submitted the written submission to explain each and every addition but the ld. CIT(A) did not consider at all. Therefore, it is against the natural justice.

Having heard the rival submissions, perused the material available on record , we are of the view that there is merit in the submissions of the ld. AR for the assessee , as the propositions canvassed by the ld. AR for the assessee are supported by the facts narrated above. As he has given an explanation that the assesse has submitted the written submissions before the ld. CIT(A) but he did not consider at all. Therefore order passed by the ld. CIT(A) is not a speaking order and it is against the natural justice. The assessee could not attend the AO and could not file the reply of the remand report because the AO failed to send the notice to him. The assessee did not get any notice from the AO and therefore he could not reply the remand report properly. Considering the above factual position we are of the view that this issue requires fresh examination at the end of the ld. CIT(A). Therefore we remit the case back to the file of the ld. CIT(A) to decide the issue afresh after giving adequate opportunity of being heard to the assessee. Therefore we set aside the case and remit the case back to the file of the ld. CIT(A) to decide the appeal afresh as per the directions given supra.

In the result, all the grounds of appeal filed by the assessee in both the appeals ( 952/Kol/2016) are allowed for statistical purposes.