DCIT, NEW DELHI vs. M/S. AIMS MAX GARDENIA DEVELOPERS PVT. LTD., DELHI

The Tribunal had recalled its order on the basis of the Miscellaneous Application filed by the Revenue to adjudicate grounds No.3, 4 and 5. The facts relating to these grounds are that the assessee is a company duly incorporated under the Companies Act on 29.09.2009 and is engaged in the business of building, construction and development of residential/commercial projects. A search and seizure operation u/s 132 of the Income-tax Act, 1961 (hereinafter referred to as ‘the Act’) was carried out in Gardenia Group of cases on 19th April, 2010. The case of the assessee was centralized. Thereafter, the AO proceeded to frame assessment and after considering the material available on record, made various additions, namely, on account of cash receipts from suppliers seized during the search of Rs.3 crore; on account of cash advances to suppliers amounting to Rs.13,09,33,749/-; and on account of cash receipt from buyers/customers of Rs.26,01,000/-. The AO in respect of bogus purchases, made addition of Rs.50 lakh. Thus, the AO assessed total taxable income at Rs.16,42,62,299/-. Aggrieved against this, the assessee preferred appeal before the ld.CIT(A) who partly allowed the appeal by deleting the 2

Aggrieved against this, the Revenue has preferred appeal before the Tribunal.

At the time of hearing, no one attended the proceedings on behalf of the assessee. It is seen from the record that no one has been attending the proceedings despite various opportunities. The notices sent by the Registry have been returned with the remarks “Left.” Under these facts, the appeal is taken up for hearing in the absence of the assessee and is being decided on the basis of material available on record.

Ground No.3 of the Revenue’s appeal is against deletion of addition of Rs.13,09,33,749/- made by the AO on account of unexplained expenditure. The ld. Departmental Representative vehemently argued that the ld.CIT(A) was not justified in deleting the addition. The ld. DR submitted that the ld.CIT(A) did not provide adequate opportunity to the AO for rebutting the submissions made by the assessee. Therefore, he submitted that the issue may be restored to the ld.CIT(A) for deciding the same afresh, after giving adequate opportunity of hearing to the assessing authority.

We have heard the ld. DR. We find that the ld.CIT(A) has decided the issue wholly on the basis of the submissions made by the assessee and without confronting the same to the AO. Therefore, to subserve the interest of principle of natural justice, the impugned order on this ground is hereby set aside and this 3

Ground No.4 of the Revenue’s appeal is against deletion of addition of Rs.3 crore made by the AO on account of unexplained investment. The ld. Departmental Representative vehemently argued that the ld.CIT(A) was not justified in deleting the addition. The ld. DR submitted that the ld.CIT(A) did not provide adequate opportunity to the AO for rebutting the submissions made by the assessee. Therefore, he submitted that the issue may be restored to the ld.CIT(A) for deciding the same afresh, after giving adequate opportunity of hearing to the assessing authority.

We have heard the ld. DR. We find that the ld.CIT(A) has decided the issue wholly on the basis of the submissions made by the assessee and without confronting the same to the AO. Therefore, to subserve the interest of principle of natural justice, the impugned order on this ground is hereby set aside and this ground is restored to the file of the ld.CIT(A) for deciding the issue afresh after giving adequate opportunity to the assessee to rebut the submissions made by the assessee. The ground No.4 raised by the Revenue is allowed for statistical purposes.

We have heard the ld. DR. We find that the ld.CIT(A) has decided the issue wholly on the basis of the submissions made by the assessee and without confronting the same to the AO. Therefore, to subserve the interest of principle of natural justice, the impugned order on this ground is hereby set aside and this ground is restored to the file of the ld.CIT(A) for deciding the issue afresh after giving adequate opportunity to the assessee to rebut the submissions made by the assessee. The ground No.5 raised by the Revenue is allowed for statistical purposes.

To sum up, the grounds No.3, 4 and 5 are allowed for statistical purposes.