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Income Tax Appellate Tribunal, CUTTACK BENCH, CUTTACK
Before: S/SHRI N.S SAINI & PAVAN KUMAR GADALE
IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK
BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER
ITA No.415/CTK/2013 Assessment Year :2009-2010
ITO, Ward 2(2), Vs. Kunjabinodini Charitable Bhubaneswar. Trust, A/173, Sahid Nagar, Bhubaneswar. PAN/GIR No. AABTK 4144 Q (Appellant) .. ( Respondent)
Assessee by : None Revenue by : Shri D.K.Pradhan, DR
Date of Hearing : 22/05/ 2017 Date of Pronouncement : 26/05/ 2017
O R D E R Per N.S.Saini, AM This is an appeal filed by the revenue against the order of CIT(A)-II,
Bhubaneswar, dated 30.3.2013, for the assessment year 2009-10.
The revenue has raised the following grounds of appeal:
”1. On the facts and in the circumstances of the case, the Ld. CIT(A) is not justified in deleting the addition of Rs.39,60,558/- made by the AO on account of unexplained advance to contractors.
On the facts and in the circumstances of the case, the Ld. CIT(A) is not justified in deleting the addition of Rs. 10,43,953/- made by the AO on account of donation.
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On the facts and in the circumstances of the case, the Ld. CIT(A) is not justified in accepting the contentions of the assessee and not accepting the findings of the AO in violation of Rule 46A of the IT Rules.”
Notice of hearing was sent to the respondent-assessee by Speed Post
on 9.5.2017 fixing the date of hearing on 22.5.2017. None was present for
the assessee when the case was called for hearing and neither any
adjournment was filed. The said notice has not been returned back by the
postal authorities unserved. Earlier, the case was fixed for hearing on
24.4.2014 when the same was adjourned to 21.5.2015 at the request of ld
A.R. of the assessee. On the said date, again the hearing was adjourned
to 12.1.2016, when the appeal was adjourned sine dine as none appeared
on behalf of the assessee. The case was fixed for hearing on 1.8.2016 and
the same was adjourned to 31.8.2016 at the request of ld A.R. of the
assessee as a last opportunity. Keeping in view the above facts and
circumstances of the case, the Bench proceeded to hear the appeal and
decide the same considering the submission of ld D.R.
Ld D.R. arguing the Ground No.3 of the appeal submitted that the
CIT(A) has deleted the addition of Rs.39,60,558/- made by the Assessing
Officer on account of unexplained advance to contractors and addition of
Rs.10,43,95a3/- on account of donation by considering additional
evidences which were submitted to the Assessing Officer for his report and
the appeal was decided without waiting for the remand report of the
Assessing Officer. Thus, there was violation of Rule 46A of ITAT Rules,
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1962. He, therefore, prayed that the matter may be restored back to the
file of the Assessing Officer for readjudicating the same afresh after
considering the additional evidences filed before the CIT(A) by the
assessee.
After considering the submissions of ld D.R. we are of the considered
opinion that the CIT(A) had called for a remand report on 29.11.2012 and
fixed a period of 30 days for the same. The report was not received and a
reminder was sent on 22.3.2013 granting time of 7 days to the Assessing
Officer for submitting his remand report. The CIT(A) has not taken any
step between 29.11.2012 to 21.3.2013 for calling of the remand report
from the Assessing Officer by sending him a reminder. We find that on
22.3.2013, suddenly, he allowed 7 days’ time to the Assessing Officer and
without receiving the remand report from the Assessing Officer, adjudicated
the issue involved in the appeal in favour of the assessee by considering
the additional evidences. In the above facts and circumstances of the case,
we are of the considered view that in the interest of rendering substantial
justice, the matter should be restored back to the file of the Assessing
Officer for considering the additional evidences filed by the assessee which
were not filed before the Assessing Officer but were filed at the time of
appellate proceedings and considering the same the CIT(A) deleted the
addition. We, therefore, set aside the order of the CIT(A) and remand back
the same to the file of the Assessing Officer for adjudicating the issues
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afresh after considering the additional evidences and affording a reasonable
opportunity of hearing to the assessee.
In the result, the appeal filed by the revenue is allowed for statistical
purposes.
Order pronounced in the open court on 26/05/2017 in the presence of parties. Sd/- Sd/- (Pavan Kumar Gadale) (N.S Saini) JUDICIALMEMBER ACCOUNTANT MEMBER Cuttack; Dated 26/05/2017 B.K.Parida, SPS Copy of the Order forwarded to : 1. The Appellant : ITO, Ward 2(2), Bhubaneswar. 2. The Respondent. Kunjabinodini Charitable Trust, A/173, Sahid Nagar, Bhubaneswar. 3. The CIT(A)-II, Bhubaneswar 4. Pr.CIT, Bhubaneswar 5. DR, ITAT, Cuttack 6. Guard file. BY ORDER, //True Copy//
SR.PRIVATE SECRETARY ITAT, Cuttack
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Date Initial 1. Draft dictated on 22/05/17 Sr.PS 2. Draft placed before author 22/05/17 (dictation pad Sr.PS has been enclosed along with original file) 3. Draft proposed & placed AM before the second member 4. Draft discussed/approved by AM Second Member. 5. Approved Draft comes to the Sr.PS/ Sr.PS/PS PS 6. Kept for pronouncement on Sr.PS 7. File sent to the Bench Clerk Sr.PS 8. Date on which file goes to the H.C. 9. Date on which file goes to the SPS 10. Date of dispatch of Order.