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Income Tax Appellate Tribunal, KOLKATA
Before: Shri Manish Borad, & Shri Sonjoy Sarma
आदेश /O R D E R Per Sonjoy Sarma, JM :
The captioned appeal filed by the assessee pertaining to the assessment year 2014-15 is directed against the order dated 31-03-2018 passed u/s. 250 of the Income-tax Act, 1961 ( in short, the ‘Act’) by the ld. Commissioner of Income-tax (Appeals), [in short, the ld. CIT(A)], Guwahati- 1, Guwahati, which in turn arises out of assessment order passed u/s. 143(3) of the Income-tax Act, 1961 ( in short, the ‘Act’) by ITO, Ward-2(1), Guwahati on 29/12/2016 for the A.Y 2014-15.
When the case was called for, none appeared on behalf of the assessee. On perusal of records shows that number of opportunities have been given to the assessee, but there is no compliance. It seems that the assessee is not interested to pursue this appeal. Therefore, we decided to adjudicate/dispose off the appeal filed by the assessee with the assistance of the Ld.DR and material available on record. The ld. DR vehemently argued in support of the orders of the lower authorities.
The assessee has raised the following grounds:-
That the impugned order dated 31/03/2018 passed by the learned Commissioner of Income Tax (Appeals), Guwahati-1, Guwahati is without jurisdiction, illegal, invalid and bad-in-Iaw being passed in the contraventions of the Principles of Natural Justice without allowing proper opportunity of being heard.
2. That the findings and observations of the learned Commissioner of Income Tax (Appeals), Guwahati-1, Guwahati made in his order dated 31/03/2018 are all perverse and contrary to the facts and laws of the case.
3. That the learned Commissioner of Income Tax (Appeals), Guwahati-1, Guwahati erred in confirming the addition of Rs.9,33,58,000 being the outstanding balance of creditors, made by the Assessing Officer as unexplained cash credit under section 68 of the Income Tax Act, 1961 (the Act) on irrelevant considerations, arbitrary grounds, on mere surmises, suspicions, conjectures and in disregard of the Principles of Natural Justice.
That the learned Commissioner of Income Tax (Appeals), Guwahati-1, Guwahati misdirected himself in law by enhancing the assessed income of the Assessee Company by the sum of Rs.3,70,00,000/- by treating the share application money received by the Assessee Company as unexplained cash credit under section 68 of the Act.
That the learned Commissioner of Income Tax (Appeals), Guwahati-1, Guwahati erred in not allowing reasonable opportunity of showing cause as contemplated under section 251 (2) of the Act before exercising his power to enhance the assessed income of the Assessee Company by the sum of RS.3,70,00,000.
That the learned Commissioner of Income Tax (Appeals), Guwahati-1, Guwahati erred in making addition of the share application money of Rs.3,70,00,000 in disregard of the binding judgments of Hon'ble Apex Court, Hon'ble Jurisdictional High Court and the Hon'ble Jurisdictional IT AT which directly lays down ratio on the merits of the addition of share capital under section 68 of the Income Tax Act, 1961.
That the learned Commissioner of Income Tax (Appeals), Guwahati-1, Guwahati had misdirected himself in law in making addition of the sum of Rs.9,33,58,000 and Rs.3,70,00,000 as unexplained cash credit under section 68 of the Act in complete disregard of the binding judgment of the Hon'ble Jurisdictional Calcutta High Court rendered in the case of CIT vs. Dataware Private Limited [ITAT No. 263 of 2011 and G.A. No. 2856 of 2011].
That the impugned order passed by learned Commissioner of Income Tax is against law and facts of the case.
4. We have heard the ld. DR and perused the record placed before us. Before adverting to grounds raised on merits while perusing the same(grounds) raised by the assessee, we find that there are almost eight grounds of appeal. Ground no. 5 raised by the assessee in the instant appeal submitting that the ld. CIT(A) erred in not allowing reasonable opportunity of show cause as contemplated u/s. 251(2) of the Act before exercising his power to enhance the assessed income by sum of Rs.3,70,00,000/-. This is one of the main grievance raised by the assessee appellant in the instant appeal, which goes to the root of the case. While perusing the order passed by the ld. CIT(A), we find that although notice was issued upon the assessee on 14-03-2018 for enhancement of assessed income. However, from the order passed by the ld. CIT(A) shows that whether the notice was properly served upon the assessee, it cannot be ascertained from record. As such the assessee was unrepresented before the ld. CIT(A) and therefore, ld. CIT(A) decided the appeal against the assessee.
5. We, therefore, looking into the facts/issues involved in this appeal, in the interest of justice as well as fair to both the parties and in order to facilitate the assessee, restore the appeal to the file of the ld. CIT(A) for fresh adjudication with a direction to assessee to furnish necessary details as and when called for to submit and should not take any adjournment unless otherwise required for reasonable cause. We further direct the ld. CIT(A) to examine the issues in the light of the documents and submissions made by the assessee, if any, provided and in case assessee fails to file necessary details even after providing reasonable opportunity the ld. CIT(A) may proceed to dispose of the appeal in accordance with law.
प�रणामत: �नधा�रती क� अपील सांि�यक� उ�दे�य से मंजूर क� जाती है। 6. In the result, the appeal of the assessee is allowed for statistical purpose.
आदेश खुले �यायपीठ म� �दनांक -08-2022 को उ�घो�षत। The order pronounced in the open Court on 10-08-2022