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