Vivaana Designer Pvt. Ltd., Surat V. Income Tax Officer, Ward 2(1)(4), Surat

ITA 115/SRT/2018

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 1683 (ITAT-SURAT)
• Duration Of Justice: 4 year(s) 6 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-09-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 13-09-2022
• Assessment Year: 2013-2014
• Appeal Filed On: 25-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bogus purchase; Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM आयकर अपील सं./ITA No.114/SRT/2018 Assessment Year: (2012-13) (Physical Court Hearing) Vivaana Designer Pvt. Ltd., A-11, Central Park, GIDC, Pandessara, Surat-394210. Vs. The ACIT, Circle-2(1)(1), Surat. èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AADCV4538Q (Appellant) (Respondent) आयकर अपील सं./ITA No.115/SRT/2018 Assessment Year: (2013-14) (Physical Court Hearing) Vivaana Designer Pvt. Ltd., A-11, Central Park, GIDC, Pandessara, Surat-394210. Vs. The ACIT, Circle-2(1)(1), Surat. èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AADCV4538Q (Appellant) (Respondent) Assessee by None. Respondent by Shri H. P. Meena, CIT(DR) with Shri Vinod Kumar, Sr. DR Date of Hearing 14/09/2022 Date of Pronouncement 16/09/2022 आदेश / O R D E R PER DR. A. L. SAINI, AM: Captioned two appeals filed by the Assessee, pertaining to Assessment Years (AYs) 2012-13 and 2013-14, are directed against the separate orders passed by the Learned Commissioner of Income Tax (Appeals)-2, Surat [in short “the ld. CIT(A)”] which in turn arise out of separate assessment orders passed by the Assessing Officer under section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as “the Act”). Page | 2 ITA.114 & 115/SRT/2018/AYs.2012-13 & 2013-14 Vivaana Designer Pvt. Ltd. 2. First, we shall take assessee`s appeal in ITA No. 114/SRT/2018 for assessment year 2012-13. Grounds of appeal raised by the assessee are as follows: “1. On the facts and circumstances of the case, the Ld. CIT(A) has erred in law and on facts by passing an order ex-parte without allowing the appellant to present his case. 2. On the facts and circumstances of the case, the Ld. CIT(A) has erred in law and on facts in confirming the action of the Ld. AO in holding that genuineness of money received from individuals to the tune of Rs.1,75,00,000/- in the subscription of the share capital of the appellant company is not established. Such findings are contrary and in complete disregard of the facts and are therefore prayed to be expunged. 3. On the facts and circumstances of the case, the Ld. CIT(A) has erred in law and on facts in confirming the action of the Ld. AO in holding that genuineness of money received from Aditya fabrics Pvt. Ltd. to the tune of Rs.1,50,00,000/- in the subscription of the share capital of the appellant company is not established. Such findings are contrary and in complete disregard of the facts and are therefore prayed to be expunged. 4. On the facts and circumstances of the case, the Ld. CIT(A) has erred in law and on facts in confirming the action of the Ld. AO in holding that identity, creditworthiness and genuineness of money received from Country Finance Pvt. Ltd. to the tune of Rs.25,00,000/- in the subscription of the share capital of the appellant company is not established. Such findings are contrary and in complete disregard of the facts and are therefore prayed to be expunged. 5. On the facts and circumstances of the case, the Ld. CIT(A) has erred in law and on facts in confirming the action of the Ld. AO in by making protective addition of purchases made to the tune of Rs.3,25,00,000/-on the ground of treating the same as bogus purchases. Such findings are contrary and in complete disregard of the facts and are therefore prayed to be expunged. 6. Your appellant craves liberty to add, alter, amend or delete any or all the grounds of appeal stated above.” 3. At the outset, we note that the appeal filed by the assessee is barred by limitation by three hundred days (300) days (approximate). The assessee did not file petition for condonation of delay. 4. None appeared on behalf of the assessee. The notice of hearing of this appeal was sent to the assessee at the address given by the assessee in Form No.36. The said notice has not been returned unserved. This appeal was listed for hearing before the Tribunal on eleven times, however nobody appeared before the Page | 3 ITA.114 & 115/SRT/2018/AYs.2012-13 & 2013-14 Vivaana Designer Pvt. Ltd. Tribunal. Today i.e. on 14.09.2022 when the case was called for hearing, none appeared on behalf of the assessee nor any request for adjournment was made. It means that assessee is not interested in prosecuting this appeal. 5. We have heard ld DR for the Revenue and noted that this appeal filed by assessee is barred by limitation by three hundred (300) days (aprox), the assessee has not filed petition for condonation of delay, therefore, we do not condone the delay and hence the appeal filed by the assessee is dismissed. 6. In the result, appeal filed by the assessee in ITA No.114/SRT/2018 is dismissed. 7. Now, we shall take assessee`s appeal in ITA No.115/SRT/2018 for AY.2013-14 wherein we have noted that assessee did not appear before the ld. CIT(A), therefore, the Ld. CIT(A) passed an ex parte order without adjudicating the assessee’s appeal on merit. The Learned Departmental Representative (Ld. DR) for the Revenue submitted that assessee neither appeared before the ld. CIT(A) nor before the Hon'ble Tribunal, therefore, this appeal should also be dismissed. 8. We have heard Ld. DR for the Revenue and noted that in this appeal the impugned order passed by the ld. CIT(A) is not on merit and the ld. CIT(A) simply dismissed the appeal of the assessee on account of non-prosecution, therefore, we are of the view that one more opportunity should be given to the assessee to plead his case before ld CIT(A). 9. Considering the above facts, we note that assessee could not plead his case successfully before the ld. CIT(A). Besides, ld CIT(A) did not pass the order as per the mandate of provisions of section 250(6) of the Act, that is, there is no adjudication on merits by ld CIT(A). Therefore, we are of the view that one more opportunity should be given to the assessee to plead his case before ld CIT(A). Therefore, without delving much deeper into the merits of the case, in the interest of justice, we restore the matter back to the file of Ld. CIT(A) for de novo Page | 4 ITA.114 & 115/SRT/2018/AYs.2012-13 & 2013-14 Vivaana Designer Pvt. Ltd. adjudication and pass a speaking order after affording sufficient opportunity of being heard to the assessee, who in turn, is also directed to contest his stand forthwith. Therefore, we deem it fit and proper to set aside the order of the ld. CIT(A) and remit the matter back to the file of the ld. CIT(A) to adjudicate the issue afresh on merits. For statistical purposes, the appeal of the assessee is treated as allowed. 10. In the result, appeals filed by the assessees in ITA No.115/SRT/2018, is allowed for statistical purposes. Registry is directed to place one copy of this order in all appeals folder / case file(s). Order is pronounced in the open court on 16/09/2022 by placing the result on the Notice Board as per Rule 34(5) of the Income Tax (Appellate Tribunal) Rule 1963. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER lwjr /Surat Ǒदनांक/ Date: 16/09/2022 SAMANTA Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat