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Income Tax Appellate Tribunal, RAIPUR BENCH,
Before: SHRI RAVISH SOOD, JM & SHRI ARUN KHODPIA, AM
आदेश / O R D E R
Per Arun Khodpia, AM :
The captioned appeal is filed by the Assessee against the order passed by the Ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi, dated 03.02.2023 which in turn arises from the order by Ld. Assessing Officer u/s 143(3) dated 07.12.2017 for A.Y.2015-16. The grounds of the appeal raised by the asseseee are as under:
2 ITA No. 105/RPR/2023 1. That under the facts and the law, the learned Commissioner of Income Tax (Appeals), NFAC, Delhi erred in passing order expartie and not considering the applications filed by the Appellant for adjournment for filing explanation of 11.01.2023 vide Acknowledgement No. 918655141110123 and on 25.01.2023 vide Acknowledgement No. 934535521250123 seeking adjournment of 15 days & one month repectively, i.e. upto 15.02.2023 and also observing that no response to Notices u/s 250 was filed. Prayed that the Order of the Ld. CIT (Appeals) dt. 03.02.2023 passing ex-parte is bad in law and is against natural justice, prayed to allow the relief claimed. 2. That under the facts and the law, the learned CIT (Appeals), NFAC, Delhi further erred in not considering the merits and facts available on the record while passing the ex-parte order. Prayed to allow the relief claimed. 3. That under the facts and the law, the learned CIT (Appeals), NFAC, Delhi further erred in confirming the disallowance u/s 40A(3) being cash payment of business expenditure of Rs. 23,650/-. Prayed to delete the disallowance of Rs.23,650/-. 4. That under the facts and the law, the learned CIT (Appeals), NFAC, Delhi further erred in confirming the disallowance of Rs. 7,08,204/- towards Corporate Social Responsibility, without considering that Explanation 2 to Sec.37 was inserted by Finance (No.2) Act, 2014 w.e.f. 1st April, 2015. Prayed that disallowance is unjustified and be deleted. 5. That under the facts and the law, the learned CIT (Appeals) further erred in confirming the lumpsum disallowance of Rs.3,00,000/- made by Id. AO out of loading & unloading expenses Rs. 3,65,40,910 without pointing out any specific instances of defect when trading results have been accepted. Prayed to delete the disallowance of Rs.3,00,000/-. 6. That under the facts and the law, the learned CIT (Appeals) further erred in confirming the disallowance of Rs. 2,16,848/- towards interest expenses Rs. 55,954/-, festival pooja expenses Rs. 32,993 and donation Rs. 1,27,901/-. The above expenses pertain to business and are allowable. Prayed to delete the disallowance of Rs.2,16,848/-. 7. That under the facts and the law, the learned CIT (Appeals) further erred in confirming the disallowance u/s 14A at Rs.1,49,769/- which is unjustified and be deleted.
That under the facts and the law, the learned CIT (Appeals) further erred in confirming the addition u/s 56(2)(viib) of Rs.2,27,400/-. Prayed to delete the addition of Rs.2,27,400/-.
3 ITA No. 105/RPR/2023 2. The facts of the case are that the appellant is a company, engaged in trading of coal. The assessee filed its return of income under section. 139 for the AY 2015-16 on 29/09/2015 declaring a total income of Rs. 1,09,60,820/-. The case was selected for scrutiny assessment and the AO determined the total income at Rs. 1,25,86,691/- u/s 143(3) the IT Act vide his order dated 7/12/2017 by making an addition of Rs. 16,25,871/-. Aggrieved by the the order of AO assessee preferred an appeal before the Commissioner (A) NFAC. However, Ld CIT(A) had dismissed the same with the observation that the appellant has not produced the relevant details in support of its grounds of appeal during the appellate proceedings to explain and substantiate the wrongful disallowance of expenses. Therefore, the business expense of Rs. 16,25,871/- disallowed by the AO and its addition to the total income was confirmed. Dissatisfied with the order of Ld CIT(A), now the assessee preferred this appeal before the ITAT.
At the outset Ld AR of the assessee drew our attention to page 42 of the paper book showing online request for adjournment of the case before the Ld CIT(A) on 11.01.2023 and 25.01.2023, however on perusal of the order of Ld CIT(A) no whisper about such adjournment request was found. Copy of online adjournment furnished before us is extracted hereunder for completeness of the facts:
4 ITA No. 105/RPR/2023
5 ITA No. 105/RPR/2023
It was further submitted by the Ld AR that assessee had requested for adjournment of the matter for a month to compile and prepare the details to be furnished in support of the assessee’s claim that the disallowance made by the Ld AO was not called for, however Ld CIT(A) ignored or missed such requests of the assessee and have passed the order in haste, without considering the request of the asseseee, such a conduct of the appellate proceedings was against the principle of natural justice, therefore it was the prayer that the matter shall be remanded back to the files of Ld CIT(A) for fresh adjudication of the issue, so the assessee could furnish the relevant details in order to substantiate it’s contentions.
In response, Ld Sr DR, vehemently supported the orders of revenue authority, however fairly admitted that if the matter is restored back to the files of Ld CIT(A) NFAC in the interest of substantial justice, the revenue has no objection.
We have considered the rival submissions and perused the material available on record. Admittedly, the fact that adjournment sought by the assessee were not taken into consideration by the CIT(A) NFAC and both parties have fairly accepted that in the interest of substantial justice the matter should be restored back to the files of Ld CIT(A) for adjudication of the matter on its merits. Under such circumstances we do not see any better option but to restore the matter to the files of Ld CIT(A) for adjudication afresh. Needless to say, that the assessee shall be provided with
6 ITA No. 105/RPR/2023 reasonable opportunity of being heard and to furnish the necessary details. With such observations, we restore the issue back to file of LD CIT(A), consequently appeal of the assessee is partly allowed.
In the result appeal of the assessee is partly allowed in terms of our observations herein above.
Order pronounced in the court on 11/09/2023.
Sd/- Sd/- (RAVISH SOOD) (ARUN KHODPIA) �याियक सद�य / JUDICIAL लेखा सद�य / ACCOUNTANT MEMBER MEMBER
रायपुर/Raipur; �दनांक Dated 11/09/2023 SB आदेश क� �ितिल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant- 2. ��यथ� / The Respondent- 3. आयकर आयु�(अपील) / The CIT(A), 4. आयकर आयु� / CIT 5. �वभागीय �ितिनिध, आयकर अपीलीय अिधकरण, रायपुर/ DR, ITAT, Raipur 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER,
(Assistant Registrar) आयकर अपीलीय अिधकरण, रायपुर/ITAT, Raipur