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Income Tax Appellate Tribunal, SURAT BENCH, SURAT
Before: SHRI PAWAN SINGH, JM & DR. A.L. SAINI, AM
िनधा�रती की ओर से /Assessee by : Ms. Chaitali Shah, C.A राज�व क� ओर से /Respondent by : Shri Vinod Kumar, Sr-DR सुनवाईकीतारीख/ Date of Hearing : 28/08/2023 घोषणाकीतारीख/Date of Pronouncement : 29/08/2023 आदेश / O R D E R PER DR. A. L. SAINI, ACCOUNTANT MEMBER: Captioned appeal filed by the assessee, pertaining to assessment year 2010-11, is directed against the order passed by the National Faceless Appeal Centre, Delhi [‘NFAC/Ld.CIT(A)’ for short] dated 27.04.2023, which in turn arises out of an order passed by the Assessing Officer under section 143(3) r.w.s. 147 of the Income Tax Act, 1961 (in short ‘the Act’), dated 28.12.2017.
The grounds of appeal raised by the assessee are as follows:-
“1. On the facts and circumstances of the case as well as law on the subject, the learned CIT(A) has erred in not admitting the appeal on the ground that the assessment order was not uploaded with the appeal memo although it was duly uploaded by the assessee while filing Form-35. 2. On the facts and circumstances of the case as well as law on the subject, the learned Assessing Officer has erred in re-opening assessment u/s 147 by issuing notice u/s 148 of the I.T. Act, 1961.
A.Y. 10-11 D More Fashion Pvt. Ltd 3. On the facts and circumstances of the case as well as law on the subject, the learned Assessing Officer has erred in making addition of Rs.1,55,00,000/- u/s 68 of the Act on account of alleged bogus share capital and share premium. 4.On the facts and circumstances of the case as well as law on the subject, the learned Assessing Officer has erred in making addition of Rs.3,10,000/- on account of alleged undisclosed commission expenses.
It is therefore prayed that assessment framed u/s 147 r.w.s. 144B of the Act may kindly be quashed and/or addition made by Assessing Officer may please be deleted.
6. Appellant craves leave to add, alter, or delete any ground(s) either before or in the course of hearing of the appeal.”
At the outset Learned Counsel for the assessee submitted that the NFAC/Ld. CIT(A) has dismissed the appeal of assessee by stating that “primary enclosures to be annexed with Form No.35” such as assessment order and demand notice were not filed by the assessee. As per NFAC/Ld. CIT(A) the defect memo has already been issued to the assessee to rectify such defect. The assessee has rectified such defects, however, NFAC/Ld. CIT(A) did not take care to see the submissions of assessee. The ld. Counsel contended that soon after receiving the defects notice, the assessee has rectified such defect and uploaded the assessment order and demand notice. The Ld. Counsel submitted before us the screen shot ITBA portal, wherein the assessment order and the demand notice were uploaded on the ITBA portal by assessee, however, the NFAC/Ld. CIT(A) did not consider / open the assessee’s mail and passed impugned ex parte order without giving opportunity of being heard to the assessee. The Ld. Counsel therefore contended that another opportunity should be given to assessee to contest its case before NFAC/Ld. CIT(A).
On the other hand, Ld. Senior DR for the Revenue did not have any objection if the matter may be remitted back to the file of the NFAC/Ld. CIT(A).
A.Y. 10-11 D More Fashion Pvt. Ltd 5. We have heard both the sides and gone through the relevant material on record. We note that assessee filed assessment order and demand notice. However, NFAC/Ld. CIT(A) did not consider / open the assessee’s mail, therefore assessee could not file further documents and evidences before ld CIT(A) and as a result, NFAC/Ld. CIT(A) has passed the impugned order, as ex parte. Considering the above facts, we note that assessee has not given sufficient opportunity of being heard and could not plead its case successfully before the NFAC/Ld. CIT(A). We note that the NFAC/Ld. CIT(A) did not discuss the assessee’s case on merits based on the material available before him hence it is a violation of principle of natural justice. We further note that it is settled law that principles of natural justice and fair play require that the affected party is granted sufficient opportunity of being heard to contest its case. Therefore, without delving much deeper into the merits of the case, in the interest of justice, we restore the matter back to the file of NFAC/Ld. CIT(A) for de novo adjudication and pass a speaking order after affording sufficient opportunity of being heard to the assessee, who in turn, is also directed to contest its stand forthwith. Therefore, we deem it fit and proper to set aside the order of the NFAC/Ld. CIT(A) and remit the matter back to the file of the NFAC/Ld. CIT(A) to adjudicate the issue afresh on merits. For statistical purposes, the appeal of the assessee is treated as allowed.
In the result, the appeal of the assessee is allowed for statistical purposes.