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Income Tax Appellate Tribunal, RAIPUR BENCH, RAIPUR
Before: SHRI RAVISH SOOD & SHRI ARUN KHODPIA
आदेश / ORDER
PER RAVISH SOOD, JM:
The present appeal filed by the assessee is directed against the order passed by the Commissioner of Income-Tax (Appeals), National Faceless Appeal Center (NFAC), Delhi, dated 19.05.2023, which in turn arises from the order passed by the AO under Sec. 143(3) of the Income- tax Act, 1961 (in short ‘the Act’) dated 18.12.2016 for assessment year 2014- 15. The assessee company has assailed the impugned order on the following grounds of appeal before us:
“1. That under facts & law, the Ld. CIT(A) erred in passing Order ex- parte without allowing proper opportunity to the appellant, barring Notice dated 03.09.2021, no other Notice for hearing was noticed on registered E-mail Id, therefore, ex-parte order is unjustified. Prayed to delete the addition of Rs.3,63,51,834/-.
2. That under facts & law, the Ld. CIT(A) further erred in not considering the ground that provisions of Sec. 145(3) are not applicable and books of account should not be rejected. Prayed to accept the books of account.
3. That under facts & law, the Ld. CIT(A) further erred in passing the Order without considering the written submission, /Paper Book running into 510 pages, application for fresh evidence under Rule 46A filed on two occasions, Remand Report of Ld. AO and response of Appellant filed to Remand Report as filed before the Ld. CIT (Appeals) during physical hearing. Prayed that the Ld. CIT (Appeals) further erred in not deciding the Appeal on merits, prayed that addition of Rs.3,63,51,834/- be deleted.
4. That under the facts and the law, the learned CIT (Appeals), NFAC, Delhi further erred in dismissing the ground against addition of Rs.78,01,834/- made by learned AO on account of difference in work- in-progress of Project City Centre as per accounts and as per report of DVO, without considering the Written Submission filed by the appellant along with Paper Book & Application U/R 46A before the 3 Bilaspur Infrastructure Pvt. Ltd. Vs. ITO-1(1), Bilaspur Hon., CIT (A), Bilaspur during physical hearing and that cost was properly recorded in the books of accounts kept and maintained. Prayed to delete the addition of Rs.78,01,834/-.
5. That under the facts and the law, the learned CIT (Appeals), NFAC, Delhi further erred in confirming the addition of Rs.2,85,50,000/- made by learned AO, under presumption and surmises and arbitrarily, on account of application money and premium received from M/s Third Eye Vinimay Private Limited without considering the Written Submission filed by the appellant along with Paper Book & Application U/R 46A before the Hon. CIT (A), Bilaspur during physical hearing. Prayed that Appellant discharged the burden of proving the identification, credit-worthiness and genuineness of the transaction, prayed to delete the addition of Rs.2,85,50,000/-.”
Succinctly stated, the assessee company, which is engaged in the business of civil construction, had filed its return of income for A.Y.2014-15 on 29.11.2014, declaring a loss of Rs. (-) 4056/-. The case of the assessee was, thereafter, selected for scrutiny assessment u/s.143(2) of the Act.
Assessment was, thereafter, framed by the A.O u/s. 143(3) of the Act dated 28.12.2016, wherein after making two fold additions, viz. (i) addition towards unexplained expenditure u/s. 69 of the Act : Rs.78,01,834/- ; and (ii) addition towards deemed income u/s. 68 of the Act : Rs.2,85,50,000/-, the income of the assessee company was determined at Rs.3,63,47,780/-.
Aggrieved the assessee carried the matter in appeal before the CIT(Appeals) but without success. Although the CIT(Appeals) had provided sufficient opportunities to the assessee company to put forth its case, but it
4 Bilaspur Infrastructure Pvt. Ltd. Vs. ITO-1(1), Bilaspur had failed to avail the same and not participated in the said proceedings, as under:
Sr. Date of notice Date of hearing Remarks No. 1. 08.01.2021 15.01.2021 Delivered on the registered e-mail address given by the appellant, but no response received. 2. 03.09.2021 20.09.2021 Delivered on the registered e-mail address given by the appellant, but no response received. 3. 23.12.2021 07.01.2022 Delivered on the registered e-mail address given by the appellant, but no response received. 4. 04.03.2022 17.03.2022 Delivered on the registered e-mail address given by the appellant, but no response received. 5. 08.04.2022 25.04.2022 Delivered on the registered e-mail address given by the appellant, but no response received. 6. 20.04.2023 05.05.2023 Delivered on the registered e-mail address given by the appellant, but no response received.
Considering the fact that the assessee company had deliberately evaded compliance of notices which were served on its registered e-mail account, the CIT(Appeals) holding a firm conviction that the assessee was not 5 Bilaspur Infrastructure Pvt. Ltd. Vs. ITO-1(1), Bilaspur serious in pursuing its appeal, thus, without dealing with the issues which were assailed before him, dismissed the appeal for non-prosecution.
The assessee being aggrieved with the order of the CIT (Appeals) has carried the matter in appeal before us.
We have heard the Ld. authorized representatives of both the parties, perused the orders of the lower authorities as well as material available on record.
Shri G.S. Agrawal, Ld. Authorized Representative (for short ‘AR’) for the assessee company, at the very outset submitted that the CIT(Appeals) had grossly erred in law and facts of the case in disposing off the appeal without considering the material available on record. Elaborating on his aforesaid contention, the Ld. AR took us through the “Ground of appeal No.3” wherein it was stated that the assessee company had on two occasions during the proceedings before the CIT(Appeals) filed “Written submissions” running into 510 pages a/w. an application for admission of certain fresh/additional evidence under Rule 46A of the Income-tax Rules, 1962. Also, as therein stated, the CIT(Appeals) had in the course of the appellate proceedings called for a “remand report” from the A.O, a copy of which was made available to the assessee who, had filed a rejoinder to the same. Carrying his contention further, it was submitted by the Ld. AR that all the aforementioned
6 Bilaspur Infrastructure Pvt. Ltd. Vs. ITO-1(1), Bilaspur documents/report, i.e. written submissions (running into 510 pages), application for admission of fresh/additional evidence filed under Rule 46A of the Income-tax Rules, 1963, “remand report” filed by the A.O, and the rejoinder to the “remand report” filed by the assessee company in the course of the appellate proceedings, were though in the course of physical hearing of the appeal, i.e. prior to the same being shifted to the faceless regime filed/available on the record of the CIT(Appeals) but had not been considered by him while disposing off the appeal. The Ld. AR, submitted, that the CIT(Appeals) while disposing off the appeal had not only grossly erred in not considering the aforesaid documents/report which were available on his record, but had on the contrary summarily dismissed the appeal based on his perverse observations. On the basis of the aforesaid facts, it was submitted by the Ld. AR that the matter in all fairness required to be restored to the file of the CIT(Appeals) with a direction to him to re-adjudicate the same after considering the aforesaid documents/report and affording a reasonable opportunity of being heard to the assessee company.
Per contra, the Ld. Departmental Representative (for short ‘DR’) relied on the orders of the lower authorities. However, the Ld. DR did not controvert the claim of the Ld. AR that the CIT(Appeals) while disposing of the appeal
7 Bilaspur Infrastructure Pvt. Ltd. Vs. ITO-1(1), Bilaspur had failed to consider the aforementioned documents/reports as were available on his record.
Having given a thoughtful consideration to the facts involved in the present appeal, we find substance in the uncontroverted claim of the Ld. AR that the CIT(Appeals) had grossly erred in disposing off the appeal without considering the aforementioned documents, i.e. written submissions/paper book (running into 510 pages), application for admission of additional evidence under Rule 46A, “remand report” that was filed by the A.O in the course of the appellate proceedings, and the rejoinder to the remand report filed by the assessee company. Considering the aforesaid lapse on the part of the CIT(Appeals) to take cognizance of the aforesaid material/documents that are stated to have been filed by the assessee with him on two occasions, the matter, in our considered view, in all fairness would require to be restored to the file of the CIT(Appeals) with a direction to him to re-adjudicate the same after considering the aforementioned documents /submissions/ remand report available on his record. Needless to say, the CIT(Appeals) in the course of the set-aside proceedings shall afford a reasonable opportunity of being heard to the assessee company which shall remain at a liberty to substantiate its claim qua the issues assailed before him on the basis of fresh documentary evidences. Thus, the Ground of appeal No.3 raised by the assessee
8 Bilaspur Infrastructure Pvt. Ltd. Vs. ITO-1(1), Bilaspur company is allowed for statistical purposes in terms of our aforesaid observations.
As we have restored the matter to the file of the CIT(Appeals) for fresh adjudication, therefore, we refrain from adverting to and dealing with the other issues on the basis of which the assessee company has assailed the order of the CIT(Appeals) before us, which, thus, are left open.
In the result, the appeal of the assessee is allowed for statistical purposes in terms of our aforesaid observations.