POWER FUELS INDIA P.LTD,MUMBAI vs. ITO 8(2)(4), MUMBAI

First, we will take up the quantum appeal of the assessee in ITA No.123/Mum/2014.

At the outset, the learned Counsel for the assessee first of all drew our attention to the assessment order stating that the same was framed ex-parte and from the assessment order itself, it is clear that only three opportunities were provided by the AO before finalizing the assessment and finally ex-parte assessment u/s 144 of the Act was 2 124 & 125/Mum/2014 framed. The learned Counsel for the assessee also drew our attention to the order of the CIT (A) that no opportunity of being heard was provided by the CIT (A) except one notice of hearing. The learned Counsel for the assessee stated that both the authorities below have passed the ex-parte orders and the assessee was not represented in the same. Therefore, it was prayed that the orders of the lower authorities be set aside and the matter may be restored back to the file of the AO for fresh adjudication. The learned Counsel for the assessee further stated that before the CIT (A) additional evidences were filed which were not entertained by him for the reason that the same could not be produced before the AO and that the CIT (A) noted that the assessee has not complied with the conditions laid down under Rule 46A of the Income Tax Rules, 1962 (hereinafter referred to as “the Rules”). The learned Counsel for the assessee stated that the evidences produced before the CIT (A) in the shape of additional evidences were vital for adjudication of the issues and the AO has framed the assessment hurriedly without providing adequate opportunity of being heard to the assessee. On query from the Bench the learned CIT DR fairly agreed that the issues can be remitted back to the file of the AO for adjudicating afresh and the assessment can be remanded back for de novo. In terms of the above facts and circumstances, we feel that the assessment and appellate order cannot sustained for the reason that the AO passed ex-parte order and when the assessee filed additional evidences before the CIT (A), the same were not admitted and the appellate order was also passed almost ex-parte. Accordingly, we set aside the orders of the lower authorities and remit all the issues back to the file of the AO for fresh adjudication after allowing reasonable opportunity of being heard to the assessee. This appeal of the assessee is allowed for statistical purposes.

Now, coming to the assessee’s appeal in , we are of the view that the penalty is arising out of the above assessment, which has been set aside and remanded the matter back to the file of the AO for fresh adjudication. Since, we

3 124 & 125/Mum/2014 have remanded the matter back to the file of the AO and the assessment is set aside, this penalty will not survive. Accordingly, we delete the penalty. However, the AO during the set aside proceedings, if, comes to a conclusion that there is concealment of income or furnishing of inaccurate particulars of income by the assessee, he can initiate fresh proceedings u/s 271 (1) (c) of the Act. This appeal of the assessee is allowed.

Coming to the assessee’s appeal in at the outset, we have seen that the quantum appeal has been set aside and here also the CIT (A) passed ex-parte order without allowing opportunity of being heard to the assessee, accordingly we think it fit to restore the matter back to the file of the CIT (A) for fresh adjudication after allowing reasonable opportunity of being heard to the assessee. Accordingly, this appeal of the assessee is allowed for statistical purposes.

In the result, the assessee’s in & 125/Mum/2014 are allowed for statistical purposes. Order pronounced in the open court on 16/06/2016.