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Income Tax Appellate Tribunal, “B” BENCH, MUMBAI
Before: SHRI MAHAVIR SINGH, JM & SHRI RAJESH KUMAR, AM
सुनवाई की तायीख / Date of Hearing : 26.5.2016 घोषणा की तायीख /Date of Pronouncement : 9.6.2016 आदेश / O R D E R PER RAJESH KUMAR, A. M: This appeal by the assessee is directed against the order dated 27.02.2012 of Commissioner of Income Tax (Appeals)-35, Mumbai (Hereinafter called as the CIT(A) for assessment year 2006-07.
None appeared on behalf of the assessee despite service of notice through RPAD. Hence, we proceed to decide the appeal ex-parte on merit of the case after hearing the ld DR.
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The sole issue arising out of the grounds of appeal
relates to the confirmation of four additions by the ld.CIT(A) as made by the AO namely one of Rs. 21,97,272/- on account of difference in receipts as per TDS certificates and as per income and expenditure account, two Rs.3,92,238/- being 25% of sundry creditors, three Rs.94,200/- on account of interest @12% on FDR and last one of Rs. 1,12,352/- being 30% of total expenses without considering the statement of the appellant dated 5.9.2009.
4. Brief facts of the case are that the assessee filed its return of income on 18.10.2006 declaring a total income at Rs.20,176/-. The assessee was engaged in the business of contractual work. The case was selected for scrutiny and the statutory notices u/s 143(2) and 142(1) were issued and served upon the assessee. During the course of scrutiny assessment proceedings, the AO noticed that there was a difference of Rs.21,97,272/- between the receipt as per TDS certificate vis a vis the books of account of the assessee. The assessee, despite of various queries raised by the AO, kept on seeking adjournments on various grounds and thus failed to submit any explanation for the query by the assessing officer in respect of this difference and finally the AO added the same to the total income of the assessee. Similarly, the AO found that the assessee has 14 sundry creditors aggregating to Rs.15,68,950/-. The AO disallowed the 25% of the said amount i.e. Rs.3,92,238/- for the reasons that the assessee failed to submit any details of the creditors/liabilities. The AO also found that the 3 3417/Mum/2012 assessee was having FDR with Vijaya Bank amounting to Rs.7,85,000/- on which no interest was accounted for and accordingly added @12% of the deposits to the income of the assessee amounting to Rs.94,200/-. A further disallowance of Rs. 1,12,352/- being 30% the total expenses in the profit and loss account of Rs.3,74,505/- was made in absence of any details and vouchers produced by the assessee. Thus, the assessment was framed u/s 143(3) of the Act on 12.12.2008 at an income of Rs.28,16,240/- by making disallowance of Rs.27,96,062/- in aggregate as stated above. Aggrieved by the order of AO, the assessee preferred an appeal before the ld. CIT(A). The ld. CIT(A) after considering the submissions of the assessee remanded the matter to the AO for verification. The AO submitted remand report to the CIT(A) on 19.1.2012 stating that in spite of sufficient opportunity neither the assessee nor his authorized representative attended the proceedings till date and therefore the verification which was to be conducted with regard to the matter referred back by the ld. CIT(A) remained as it was and further submitting that the case may be decided on merits. The CIT(A) gave opportunity to the AR of the assessee by giving a copy of the remand report in response to which Shri D L Vora filed written submissions wherein he submitted that the person looking after the business and financial matters of the assessee in Mumbai suffered from paralytic stroke since January 2011 and was undergoing treatment at Kokilaben D Ambani Hospital, Mumbai and he was unable to speak and walk and requested
4 3417/Mum/2012 for one more opportunity to present the case before the AO. The ld.AR also produced certain medical certificates issued by Kokilaben D Ambani Hospital. Finally, the ld. CIT(A) dismissed the appeal of the assessee without passing a speaking order by holding as under : “8. I have considered the submission of the Ld.A.R. of the appellant as well as the stand of the A.O. I have also perused the copy of letter dated 05.02.2010, claimed to have been filed by the appellant before the A.O.. A cursory look at the letter shows that there is no stamp or official seal of the office of the A.O. which can prove that this letter was filed before the A.O. Therefore, when the A.O. submits that there was non-compliance on the part of the appellant, it will be difficult for me to entertain such claim of the appellant at this stage without any concrete evidence. As regards merit of the case, the Ld.A.R. has not made out any case as to why the addition made by the A.O. should be deleted or modified. Under the circumstances, I am unable to make any intervention in the Assessment Order.”
We have gone through the relevant materials placed before us and also considered the submissions of the ld. DR. We find that the assessee could not attend either before the AO in the original as well as in the remand proceedings. It was submitted before CIT(A) by the ld.AR of the assessee that the person who was looking after the affairs of the assessee in Mumbai suffered a paralytic attack and was hospitalized and it was due to this reason the assessee could not be represented before the AO and filed various documents including medical certificates issued by Kokilaben D Ambani Hospital to corroborate his averments. We further find that the order of ld.CIT(A) is a non-speaking order which is wrong and can be sustained. In view of the facts and circumstances of the case,
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