M/s. Shiv Milk Product Vs. ITO Ward 2(3) Meerut

IN THE INCOME TAX APPELLATE TRIBUNAL

DELHI BENCH: ‘H’ NEW DELHI

BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER

AND

SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER

I.T.A. No. 3984/Del/2015

Assessment Year: 2010-11

M/S SHIV MILK PRODUCTS, vs. INCOME TAX OFFICER,

C/o Vinod Kumar Goel, WARD 2(3),

282, Boundary Road, Civil Lines, Meerut

Meerut

(PAN: AAWFS2098A)

(ASSESSEE) (RESPONDENT)

Assessee by: Sh. Vinod Goel, Adv.

Revenue by: Sh. Umesh Chand Dubey, Sr. DR

 

ORDER

This appeal is filed by assessee against the order dated

19.11.2014 passed by the Ld. CIT(A), Meerut relating to Assessment

Year 2010-11 on the following grounds:-

1. That CIT(A) has not considered the fact that the business

of the assessee was closed due to the seal imposed by

Syndicate Bank, Meerut Cantt. That the earlier counsel

has not inform the date of hearing on 18-11-2011, hence

order passed by CIT(A), Meerut confirming the order is bad

in law.

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2. That no notice U/s 143(2) was served upon the assessee.

Hence, entire assessment U/s 143(3) is bad in law and

CIT(A) is in error in confirming the same.

3. That A.O. has not justified estimated net profit of the firm

of Rs. 69,97,667/- @ 5% of the gross turnover. The A.O.

has not given any comparative case and CIT(A) has not

given any finding on merit.

4. That A.O. has not justified in making addition of Rs.

23,27,697/- as capital introduced by the partner's and

CIT(A) has not given any finding on merit.

5. That A.O. has not justified in making addition of Rs.

1,09,489/- U/s 43B of I.T. Act, 1961 and CIT(A) has not

given any finding on merit.

6. That A.O. has not justified in making addition of Rs.

5,58,600/- on account of interest on advances @ 12% an

CIT(A) has not given any finding on merit.

7. That A.O. has not justified in making addition of Rs.

1,73,307/- on account of advances to Devendra Singhal,

J.K Gupta and Shashi Kiran @ 12% and CIT(A) has not

given any finding on merit.

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8. That A.O. has not justified in making addition of Rs.

4,00,000/- U/s 68 as unsecured loan and CIT(A) has no

given any finding on merit.

9. That the assessee has right to add, delete or modify any

grounds during the appeal proceeding.

2. Facts narrated by the revenue authorities are not disputed by

both the parties, hence, the same are not repeated here for the sake

of brevity.

3. Ld. Counsel of the assessee has stated that no notice u/s.

143(2) was served upon the assessee. He further stated that Ld.

CIT(A) has not given sufficient opportunity, hence, the issues in

dispute may be set aside to the file of the Ld. CIT(A) to decide the same

afresh, under the law, after giving adequate opportunity of being

heard. He himself made a statement that he will appear before the Ld.

CIT(A), as and when the Bench directed to do so.

4. On the contrary, Ld. DR opposed the request of the Ld. Counsel

of the assessee.

5. We have heard both the parties and perused the records. We

have gone through the order passed by the revenue authorities

especially the impugned order and we find that ld. CIT(A) has issued

the notice to the assessee, but the assessee did not attend the

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proceedings. For ready reference, we are reproducing the relevant

para no. 2 to 4 of the impugned order as under:-

“2. This is a high demand appeal. It is observed from a

study of the assessment order that the same was

passed u/s. 143(3) of I.T. Act, 1961. It is also

observed that the assessee failed to appear on many

occasions in response to notices issued by the AO.

During the appellate proceedings, compliance was

fixed on 25.09.2014 in terms of notice u/s. 250 dated

26.8.2014. On this date, the AR of the appellant filed

an adjournment application stating therein that he is

not in a position to attend the hearing on 25.9.2014.

The case was adjourned for 18.11.2014. On this date,

no compliance was made nor was any written

communication received from the appellant.

3. From the above, it is evident that sufficient

opportunities of being heard have been allowed to the

appellant. This also implies that the appellant is not

interested in pursuing the appeal for the reasons best

known to him. Since sufficient opportunities of being

heard have been given to the appellant, no further

adjournment can be granted. Therefore, the appeal is

disposed off on the basis of material on record.

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4. Since the appellant has not furnished any written

explanation and / or detail against the additions made

by the AO in his order u/s. 143(3), it is held that the

AO was justified in making the additions. The same

are hereby confirmed. Grounds of appeal are

dismissed.

5. In the result, the appeal is dismissed.”

6. Keeping in view of above facts and circumstances, we are of the

view that sufficient opportunity has not been given by the Ld. First

Appellate Authority to the assessee for substantiating its claim before

the ld. CIT(A) which is not sustainable in the eyes of law and against

the principles of natural justice. I also note that on merit also Ld.

CIT(A) has not passed a speaking order on the issues in dispute,

hence, we are of the view that in this case the issues in dispute needs

to be remitted back to the file of the Ld. CIT(A) to decide the same

afresh, as per law. Accordingly, the issues in dispute are set aside

and restored back to the file of the Ld. CIT(A) and the Ld. CIT(A) is

directed to consider the issues in dispute afresh after giving adequate

opportunity of being heard to the assessee. Therefore, as requested by

the Ld. Counsel of the assessee, the Assessee is directed through his

Counsel to be present before the Ld. CIT(A) on 12.01.2017 at

10.00 AM and fully cooperate with the Ld. CIT(A) and did not take any

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unnecessary adjournment and file all the necessary papers before him

to substantiate his case.

7. In the result, the appeal filed by the assessee stands allowed for

statistical purposes.

Order pronounced in the Open Court on 13/12/2016.

Sd/- Sd/-

[PRASHANT MAHARISHI] [H.S. SIDHU]

ACCOUNTANT MEMBER JUDICIAL MEMBER

Date 13/12/2016

“SRBHATNAGAR”

Copy forwarded to: -

1. Appellant -

2. Respondent -

3. CIT

4. CIT (A)

5. DR, ITAT

TRUE COPY

By Order,

Assistant Registrar, ITAT, Delhi Benches