I.P. India Pvt. Ltd.(Now Known as Adhunik Technology Pvt. Ltd.), New Delhi V. ACIT, New Delhi

ITA 2304/DEL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3468 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-04-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 17-04-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 28-04-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Principle of natural justice; Earning of tax free income; Additional evidence
• Section: 142(1); 133(6); 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SH. H.S.SIDHU, JUDICIAL MEMBER AND SH.ANADEE NATH MISSHRA, ACCOUNTANT MEMBER I.T.A .NO.-2304/DEL/2016 (ASSESSMENT YEAR-2012-13) I.P. INDIA PVT. LTD. (NOW KNOWN AS ADHUNIK TECHNOLOGY PVT. LTD.) C/O-KAPIL GOEL, ADV., F-26/124, SECTOR-7, ROHINI, NEW DELHI-110085. PAN-AABCI0760K ( APPELLANT) VS ACIT, CENTRAL CIRCLE-18, NEW DELHI (RESPONDENT) ASSESSEE BY SH.KAPIL GOEL, ADV. REVENUE BY SH.N.K.BANSAL, SR.DR ORDER PER ANADEE NATH MISSHRA, ACCOUNTANT MEMBER (A). THE PRESENT APPEAL HAS BEEN FILED BY THE ASSES SEE AGAINST THE ORDER DATED 12.02.2016 OF CIT(A)-27, NEW DELHI PERT AINING TO A.Y. 2012- 13. GROUNDS OF APPEAL ARE AS UNDER:- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF CASE AND IN LAW, THE LD CIT-A ERRED IN SUSTAINING ADDITION U/S 68 AMOUNTING TO RS.15,38,64,403/- ON ACCOUNT OF ALLEGED UNEXPLAINED CREDIT WHERE LD AO MADE ADDITION ON MERE BASIS OF HEARSAY AND GO SSIP AND MERELY BASED ON CONJECTURES AND WITHOUT MEANINGFUL AND LAW BOUND ENQUIRY. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF CASE AND IN LAW THE LD CIT-A ERRED IN SUSTAINING ADDITION U/S 68 AM OUNTING TO RS 15,38,64,403/ ON ACCOUNT OF ALLEGED UNEXPLAINED CRE DIT WHERE LD PAGE 2 OF 12 AO MADE ADDITION IGNORING ASSESSEE'S SELF EXPLANATO RY REPLIES ON RECORDS. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF CA SE AND IN LAW, THE LD CIT-A ERRED IN SUSTAINING ADDITION U/S 68 AM OUNTING TO RS.15,38,64,403/- ON ACCOUNT OF ALLEGED UNEXPLAINED CREDIT WHERE LD AO MADE ADDITION WITHOUT MAKING POSSIBLE ENQUIRY FROM: 3.1. AVAILABLE INCOME TAX RECORDS AND CO-ORDINATE O FFICER OF SAID CREDITOR; 3.2. AVAILABLE BANK RECORDS OF SAID CREDITOR; 3.3. AVAILABLE ROC RECORDS OF SAID CREDITOR 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF CA SE AND IN LAW, THE LD CIT-A ERRED IN SUSTAINING ADDITION U/S 68 AM OUNTING TO RS I5,38,64,403 ON ACCOUNT OF ALLEGED UNEXPLAINED CRED IT WITHOUT APPRECIATING DETAILED REPLY FILED DURING ASSESSMENT & APPELLATE PROCEEDINGS. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF CA SE AND IN LAW, THE LD CIT-A ERRED IN SUSTAINING ADDITION U/S 68 AM OUNTING TO RS 15,38,64,403 ON ACCOUNT OF ALLEGED UNEXPLAINED CRED IT WITHOUT APPRECIATING THAT THERE WAS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AT THE END OF LD AO. 6. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF CA SE AND IN LAW, THE LD CIT-A ERRED IN NOT APPLYING SOME TOKEN RATE OF PROFIT TO CREDITS APPEARING IN BOOKS AS ONLY ULTIMATE BENEFIC IARY CAN BE TAXED U/S 68 FOR FULL CREDIT. (B). THE ASSESSEE FILED E-RETURN ON 04.12.2012 SHOW ING A LOSS OF RS.75,641/-. ASSESSMENT ORDER WAS PASSED ON 25.02.2 015 WHEREIN ADDITION OF RS.15,38,64,403/- WAS MADE ON ACCOUNT O F UNEXPLAINED SUNDRY CREDITORS AND THE INCOME WAS ASSESSED AT RS. 15,37,88,762/- (ROUNDED OFF TO RS.15,37,88,760/-). THE RELEVANT P ORTION OF THE ASSESSMENT ORDER IS REPRODUCED HEREUNDER:- PAGE 3 OF 12 IN THIS CASE E-RETURN WAS FILED ON 04.12.2012. THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE U/S 143(2) DATED 2 6.08.2013 WAS ISSUED FIXING FOR 30.12.2013 BUT NO COMPLIANCE WAS MADE. ON 03.12.2013 NOTICE U/S 142(I) CUM QUESTIONNAIRE WAS ISSUED FIXING FOR 17.12.2013 WHICH TOO REMAINED UN-COMPLIED WITH. AGAIN ON 20.10.2014 NOTICE U/S 142(L) CUM QUESTIONNAIRE FIXI NG FOR 30.10.2014 WAS ISSUED. IN COMPLIANCE MS. NUPUR GARG BANSAL C.A. APPEARED FILED APPLICATION FOR ADJOURNMENT AND CASE WAS ADJOURNED FOR 13.11.2014. IN REPLY THE ASSESSEE COMPANY HAS S TATED AS UNDER:- 1. UNSECURED LOANS-NO UNSECURED LOAN TAKEN DURING THE YEAR. 2. SALES & PURCHASES-NO SALES & PURCHASES DURING TH E YEAR. 3. MONTH-WISE, PARTY-WISE DETAILS OF SERVICES RENDE RED OR GOODS SOLD & PURCHASES-THERE ARE NO SALES & PURCHASES MAD E BY COMPANY DURING THE YEAR UNDER CONSIDERATION. HENCE , THIS PAINT IS NOT APPLICABLE. 4. ADDITION IN FIXED ASSETS-AS THERE ARE NO FIXED A SSETS WITH THE COMPANY DURING THE YEAR, THIS POINT IS NOT APPLICAB LE. 5. EXEMPT INCOME-THERE IS NO INCOME DURING THE YEAR WHICH IS CLAIMED AS EXEMPT. 6. DEDUCTIONS-NO DEDUCTIONS CLAIMED BY COMPANY DURI NG THE YEAR UNDER CONSIDERATION. 7. AIR INFORMATION-NO AIR TRANSACTIONS TAKEN PLACE DURING THE YEAR UNDER CONSIDERATION. 2. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASS ESSEE WAS REQUIRED TO GIVE THE DETAILS OF SUNDRY CREDITOR S REFLECTED IN THE BALANCE SHEET. IN REPLY THE ASSESSES HAS GIVEN DETA ILS OF SUNDRY CREDITORS AMOUNTING TO RS.15,37,15,000/- RELATING T O EIGHT PARTIES. IN ORDER TO VERIFY THE GENUINENESS SUMMONS WERE ISS UED TO M/S IKF GREEN FUEL LTD. AND M/S URJA GLOBAL LTD. THE SUMMON S REMAINED UN-COMPLIED AND THE ITI HAS REPORTED THAT THESE COM PANIES WERE NOT FOUND AT GIVEN ADDRESS. LETTERS U/S 133(6) WERE IS SUED WHICH WERE INVARIABLY RETURNED BY POSTAL AUTHORITY WITH THE RE MARKS OFFICE CLOSED, ADDRESS MOVED ETC. HOWEVER, FEW COMPANIES H AVE FILED CONFIRMATORY LETTERS WITH BANK STATEMENTS. A PERUSA L OF BANK STATEMENTS SUBMITTED BY THE CREDITOR COMPANIES SHOW S THAT BEFORE PAGE 4 OF 12 ISSUING THE CHECK TO THE ASSESSEE COMPANY AND IDEN TICAL AMOUNT HAS BEEN DEPOSITED. ACCORDINGLY THE ASSESSEE WAS VI DE QUESTIONNAIRE DATED 14.01.2015 WAS CONFRONTED OF TH E FACT AS 'NARRATION OF EACH ENTRY EXCEEDING RS.10,00,000/- A PPEARING IN BANK STATEMENTS WITH SOURCE AND NATURE OF SUCH TRAN SACTIONS IN THE LIGHT THAT IT IS SEEN ADJUST BEFORE ISSUANCE OF CHE QUE SIMILAR AMOUNT HAS BEEN CREDITED IN THE CASE OF M/S BCA CAPFIN AND M/S ADHUNIK INDIA LTD.' ON THIS ISSUE THE ASSESSEE NEVER SUBMIT TED ITS REPLY. 3. IN VIEW OF THE FACTS NARRATED ABOVE IT IS ESTABLISH ED THAT THE CREDITORS SHOWN BY THE ASSESSEE COMPANY ARE EITHER A NON EXISTING COMPANY OR COMPANY'S UNDISCLOSED INCOME HAS BEEN CH ANNELIZED UNDER THE DISGUISE OF THESE COMPANIES. THEREFORE, I T IS MY CONSIDERED OPINION THAT SUNDRY CREDITORS REFLECTED IN THE BALANCE SHEET WHICH AMOUNTS TO RS.15,38.64,403/- IS NOTHING BUT UNDISCLOSED INCOME OF THE COMPANY WHICH WILL BE ADD ED TO THE INCOME OF THE COMPANY AS UNEXPLAINED CREDITS. (B.1).THE ASSESSEE FILED APPEAL BEFORE LD.CIT(A). VIDE ORDER DATED 12.02.2016, THE LD.CIT(A) DISMISSED THE ASSESSEES APPEAL. THE RELEVANT PORTION OF THE ORDER OF LD.CIT(A) IS REPRO DUCED BELOW:- 3. I HAVE CAREFULLY CONSIDERED THE WRITTEN SUBMISSION AND THE CASES RELIED UPON BY THE A.R. OF THE APPELLANT AND HAVE GONE THROUGH THE ASSESSMENT ORDER. IT IS SEEN THAT DURI NG THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER RE QUIRED THE ASSESSEE TO GIVE THE DETAILS OF SUNDRY CREDITORS RE FLECTED IN THE BALANCE SHEET. THE ASSESSEE GAVE DETAILS OF SUNDRY CREDITORS AMOUNTING TO RS. 15,37,15,000/- RELATING TO EIGHT P ARTIES. THE ASSESSING OFFICER ISSUED SUMMONS TO VERIFY THE GENU INENESS TO M/S IKF GREEN FUEL LTD. AND M/S URJA GLOBAL LTD. TH E SUMMONS REMAINED UN-COMPLIED WITH AND THE INSPECTOR OF HIS OFFICE REPORTED THAT THE SAID COMPANIES WERE NOT FOUND AT GIVEN ADDRESS. LETTERS U/S 133(6) WERE ISSUED WHICH WERE INVARIABLY RETURNED BY POSTAL AUTHORITY WITH THE REMARKS OFFIC E CLOSED, ADDRESS MOVED ETC. HOWEVER, FEW COMPANIES HAVE FILE D CONFIRMATORY LETTERS WITH BANK STATEMENTS, A PERUSA L OF BANK STATEMENTS SUBMITTED BY THE CREDITOR COMPANIES SHOW S THAT BEFORE ISSUING THE CHECK TO THE ASSESSEE COMPANY ID ENTICAL PAGE 5 OF 12 AMOUNTS WERE DEPOSITED. ACCORDINGLY THE ASSESSING O FFICER VIDE QUESTIONNAIRE DATED 14.01.2015 CONFRONTED THE ASSES SEE, AND REQUIRED TO FILE 'NARRATION OF EACH ENTRY EXCEEDING RS.10,00,000/- APPEARING IN BANK STATEMENTS WITH SOURCE AND NATURE OF SUCH TRANSACTIONS IN THE LIGHT THAT IT IS SEEN ADJUSTED BEFORE ISSUANCE OF CHEQUE AND SIMILAR AMOUNT WAS CREDITED IN THE CA SE OF M/S BCA CAPFIN AND M/S ADHUNIK INDIA LTD.' ON THIS ISSU E THE ASSESSEE NEVER SUBMITTED ITS REPLY. 3.1. IN VIEW OF THE FACTS NARRATED IN THE ORDER AND AS ABOVE, IT IS ESTABLISHED THAT THE CREDITORS SHOWN BY THE ASSESSE E COMPANY ARE EITHER A NON EXISTING COMPANY OR COMPANY'S UNDI SCLOSED INCOME WAS CHANNELIZED UNDER THE GUISE OF THESE COM PANIES. ACCORDINGLY, THE ASSESSING OFFICER FOUND THAT SUNDR Y CREDITORS REFITTED IN THE BALANCE SHEET WHICH AMOUNTED TO. RS.15,38,64,403/- WAS UNDISCLOSED INCOME OF THE COM PANY WHICH WERE ADDED TO THE INCOME OF THE COMPANY AS UN EXPLAINED CREDITS. 3.2. IN VIEW OF ALL THESE FACTS, THE SUBMISSIONS OF THE APPELLANT AND THE LEGAL POSITION, I HAVE NO REASON TO DISAGREE WITH THE STAND TAKEN BY THE ASSESSING OFFICER IN TH E ORDER OF ASSESSMENT. ACCORDINGLY, ALL THE GROUNDS RAISED IN APPEAL ARE DISMISSED. (C). THIS APPEAL HAS BEEN FILED BY THE ASSESSEE IN ITAT AGAINST THE AFORESAID ORDER DATED 12.02.2016 OF THE LD.CIT(A). AT THE TIME OF HEARING BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT THE AO DID NOT PROVIDE NATURAL JUSTICE TO THE ASSESSEE BEFORE FINALIZING BEST JUDGEMENT ASSESSMENT U/S 144 OF THE I.T.ACT, 1961. TO SUPPORT THIS CONTENTION, HE PLEADED THAT REASONABLE OPPORTUNITY WAS NOT PROVIDED BY THE AO AND FURTHER, HE HIGHLIGHTED THAT THE AO DID NOT ISSUE SHOW CAUSE NOTICE PRESCRIBED UNDER PROVISO TO SECTION 14 4(1) OF THE I.T.ACT. HE ALSO BROUGHT CBDT INSTRUCTION 20/2015 DATED 29.1 2.2015 TO OUR PAGE 6 OF 12 ATTENTION AND CONTENDED THAT PROCEDURE COMMUNICATED VIDE PARAGRAPH 4 OF THIS INSTRUCTION WAS NOT FOLLOWED BY THE AO. THE LD. COUNSEL FURTHER CONTENDED THAT THE ASSESSEE HAD FILED DETAI LED PAPER BOOK CONTAINING 90 PAGES BEFORE THE LD.CIT(A). HOWEVER, THE LD.CIT(A) DID NOT CONSIDER THE PAPER BOOK FILED BY THE ASSESSEE A ND PASSED A NON- SPEAKING ORDER, BY MERELY CONSIDERING THE ASSESSMEN T ORDER AND WITHOUT TAKING ANY COGNIZANCE OF THE SUBMISSIONS AN D EVIDENCES FILED BY THE ASSESSEE BEFORE LD.CIT(A). THE LD.CIT. (DR) APPEARING FOR REVENUE STRONGLY SUPPORTED THE ORDERS OF THE AO AND THE LD.CIT(A). HE CONTENDED THAT THERE WAS NO VIOLATION OF NATURAL JU STICE BY THE AO AT THE ASSESSMENT STAGE. TO SUPPORT THIS CONTENTION, HE DREW OUR ATTENTION TO FACTS STATED BY THE AO IN PARA 2 OF TH E ASSESSMENT ORDER. IN THIS PARAGRAPH OF THE ASSESSMENT ORDER, THE AO H AS GIVEN DETAILS OF SUMMONS ISSUED TO M/S IKF GREEN FUEL LTD. AND M/S U RJA GLOBAL LTD. WHICH REMAINED UNCOMPLIED. THE AO HAS ALSO INFORMED THAT INCOME TAX INSPECTORS (ITI) HAD REPORTED THAT THESE COMP ANIES WERE NOT FOUND AT THE GIVEN ADDRESS. THE AO HAS ALSO STATED THAT LETTERS U/S 133(6) WERE ISSUED WHICH WERE RETURNED BY POSTAL AUTHORITI ES WITH THE REMARKS OFFICE CLOSED, ADDRESS MOVED ETC. SOME COMPANI ES DID FILE CONFIRMATORY LETTERS WITH BANK STATEMENTS BUT THE A O NOTED ON PERUSAL OF THE BANK STATEMENTS SUBMITTED BY CREDITOR COMPAN IES THAT BEFORE PAGE 7 OF 12 ISSUING CHEQUE TO THE ASSESSEE COMPANY, AN IDENTICA L AMOUNT HAS BEEN DEPOSITED IN THE BANK ACCOUNT. THE ASSESSEE WAS CO NFRONTED WITH THIS FACT BY THE AO AND THE ASSESSEE WAS ASKED BY AO VID E QUESTIONNAIRE DATED 14.01.2015 TO FURNISH NARRATION OF EACH ENTR Y EXCEEDING RS.10,00,000/- APPEARING IN BANK STATEMENTS WITH SO URCE AND NATURE OF SUCH TRANSACTIONS IN THE LIGHT THAT IT IS SEEN A DJUST BEFORE ISSUANCE OF CHEQUE SIMILAR AMOUNT HAS BEEN CREDITED IN THE CASE OF M/S BCA CAPFIN AND M/S. ADHUNIK INDIA LTD. THE LD.CIT DR CONTENDED THAT THE AO COMPLETED THE ASSESSMENT ON 25.02.2015 AFTER PROVIDING REASONABLE OPPORTUNITY TO THE ASSESSEE SINCE ISSUE OF QUESTIONNAIRE DATED 14.01.2015 AND TOOK AN ADVERSE VIEW AGAINST THE ASSESSEE BECAUSE THE ASSESSEE NEVER SUBMITTED ITS REPLY DESP ITE REASONABLE OPPORTUNITY. HOWEVER, LD.CIT (DR) ADMITTED THAT TH E LD.CIT(A) PASSED A NON-SPEAKING ORDER WITHOUT TAKING THE SUBMISSIONS AND EVIDENCES FILED BY THE ASSESSEE BEFORE LD.CIT(A) INTO COGNIZA NCE AND BY MERELY RELYING ON THE ASSESSMENT ORDER. (D). WE HAVE HEARD BOTH SIDES PATIENTLY. WE HAVE A LSO CONSIDERED THE MATERIALS ON RECORD CAREFULLY. WE FIND THAT THE A SSESSMENT ORDER WAS PASSED ON 25.02.2015 WHICH IS MUCH BEFORE CBDT INST RUCTION 20/2015 DATED 29.12.2015. THEREFORE, THE RELIANCE BY THE ASSESSEE ON CBDT PAGE 8 OF 12 INSTRUCTION ISSUED AFTER COMPLETION OF ASSESSMENT PROCEEDINGS, ON PROCEDURE TO BE FOLLOWED IN ASSESSMENT, LACKS FORCE AND CONVICTION. ON PROCEDURAL MATTERS CBDT INSTRUCTIONS CANNOT BE SAID TO HAVE RETROSPECTIVE APPLICATION. FURTHER, WE NOTICE THAT THE AO HAD ISSUED NOTICES U/S 142(1) OF I.T.ACT DATED 03.12.2013, 20. 10.2014 AND 14.01.2015. IN PARTICULAR VIDE QUESTIONNAIRE DATED 14.01.2015 FORMING PART OF NOTICE DATED 14.01.2015 U/S 142(1) OF THE I .T.ACT, THE ASSESSEE WAS SPECIFICALLY ASKED, VIDE SERIAL NO.11 OF THE QU ESTIONNAIRE, TO FURNISH NARRATION OF EACH ENTRY EXCEEDING RS.10,00,000/- A PPEARING IN BANK STATEMENTS WITH SOURCE AND NATURE OF SUCH TRANSACTI ONS IN THE LIGHT THAT IT IS SEEN ADJUST BEFORE ISSUANCE OF CHEQUE SI MILAR AMOUNT HAS BEEN CREDITED IN THE CASE OF M/S BCA CAPFIN AND M/S ADHUNIK INDIA LTD. UNDER SECOND PROVISO TO SECTION 144(1) OF THE I.T.A CT, THE AO HAS STATUTORY MANDATE, IF A NOTICE U/S 142(1) OF I. T.ACT IS ISSUED BY THE AO BEFORE COMPLETION OF ASSESSMENT, TO COMPLETE BEST JUDGEMENT ASSESSMENT U/S 144 OF THE I.T.ACT WITHOUT GIVING SHOW CAUSE NOTICE REFERRED TO IN FIRST PROVISO TO SECTIO N 144(1) OF THE I.T.ACT. IN THE INSTANT CASE, THEREFORE, EVEN IF THE AO HA S NOT SERVED A SHOW CAUSE NOTICE UNDER FIRST PROVISO OF SECTION 14 4(1) OF THE I.T.ACT, THE BEST JUDGEMENT ASSESSMENT COMPLETED BY THE AO U /S 144 OF THE I.T.ACT IS NOT INCONSISTENT WITH PROVISIONS UNDER S ECTION 144 OF THE PAGE 9 OF 12 I.T.ACT BECAUSE INDISPUTABLY, THE AO HAD ISSUED NOT ICE U/S 142(1) OF I.T.ACT, DATED 14.01.2015. WE HAVE ALSO NOTICED TH AT THE ASSESSMENT ORDER HAS BEEN PASSED ON 25.02.2015 AFTER PROVIDING THE ASSESSEE REASONABLE OPPORTUNITY TO COMPLY WITH NOTICE DATED 14.01.2015 U/S 142(1) OF THE I.T.ACT WHEREBY THE ASSESSEE WAS ASKE D TO FURNISH NARRATION OF EACH ENTRY EXCEEDING RS.10 LACS APPEAR ING IN BANK STATEMENT WITH SOURCE AND NATURE OF SUCH TRANSACTIO NS. WE HAVE ALSO NOTICED THAT THE AO HAD ISSUED SUMMONS, HAD CARRIED OUT FIELD INQUIRY THROUGH ITI AND HAD ALSO CARRIED OUT INQUIRY U/S 13 3(6) OF THE I.T.ACT. IT IS NOT THE CASE OF THE ASSESSEE EITHER BEFORE TH E LD.CIT(A) OR BEFORE US IN ITAT THAT DURING THE ASSESSMENT PROCEEDINGS THE AO HAD REFUSED TO ADMIT EVIDENCE WHICH OUGHT TO HAVE BEEN ADMITTED; O R THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING TH E EVIDENCE WITH THE ASSESSEE WAS CALLED UPON BY THE AO TO PRODUCE; OR T HAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING AN Y RELEVANT EVIDENCE BEFORE THE AO; OR THAT THE AO MADE THE ASSESSMENT O RDER WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO ADDUCE RE LEVANT EVIDENCE. THE GRIEVANCE OF THE ASSESSEE COMES FROM THE FACT THAT A SHOW CAUSE NOTICE WAS NOT ISSUED TO THE ASSESSEE BEFORE COMPLETING AS SESSMENT U/S 144 OF THE I.T.ACT. WE HAVE ALREADY HELD THAT THE BEST JUDGEMENT ASSESSMENT COMPLETED BY THE AO U/S 144 OF THE I.T.A CT IS NOT PAGE 10 OF 12 INCONSISTENT WITH PROVISIONS UNDER SECTION 144 OF T HE I.T.ACT; SINCE UNDER SECOND PROVISO TO SECTION 144(1) OF THE I.T.A CT, THE AO HAS STATUTORY MANDATE , IF A NOTICE U/S 142(1) OF THE A CT IS ISSUED BY THE AO BEFORE COMPLETION OF ASSESSMENT, TO COMPLETE BEST J UDGEMENT ASSESSMENT U/S 144 OF THE I.T.ACT WITHOUT GIVING SH OW CAUSE NOTICE REFERRED TO IN FIRST PROVISO TO SECTION 144(1) OF T HE I.T.ACT. WE HAVE ALSO ALREADY HELD THAT THE RELIANCE BY THE ASSESSEE ON C BDT INSTRUCTION ISSUED AFTER COMPLETION OF ASSESSMENT PROCEEDINGS, ON PROCEDURAL MATTERS, LACKS FORCE AND CONVICTION. IN THESE FACTS AND CIRCUMSTANCES, WE REJECT THE CONTENTIONS MADE ON BEHALF OF THE ASS ESSEE BY LD. COUNSEL FOR THE ASSESSEE THAT THERE WAS ANY VIOLATI ON OF NATURAL JUSTICE AT THE ASSESSMENT STAGE OR THAT REASONABLE OPPORTUN ITY WAS NOT PROVIDED BY THE AO. (D.1). HOWEVER, THERE IS NO DISPUTE OVER THE FACT T HAT THE LD.CIT(A) HAS PASSED APPELLATE ORDER DATED 12.02.2016 WITHOUT TAK ING THE SUBMISSIONS AND EVIDENCES FILED BY THE ASSESSEE BEF ORE THE LD.CIT(A) INTO COGNIZANCE. THE ORDER OF THE LD.CIT(A) IS A N ON-SPEAKING ORDER AS FAR AS THE SUBMISSIONS AND EVIDENCES FILED BY THE A SSESSEE BEFORE THE LD.CIT(A) IS CONCERNED. IN HER ORDER, LD.CIT(A) HAS NOT GIVEN ANY FINDINGS ABOUT THE SUBMISSIONS AND EVIDENCES FILED BY THE ASSESSEE PAGE 11 OF 12 BEFORE LD.CIT(A). THE ORDER OF THE LD.CIT(A) IS ALS O SILENT ON WHETHER THE EVIDENCES FILED BY THE ASSESSEE DURING APPELLATE PR OCEEDINGS BEFORE LD.CIT(A) WERE PARTLY OR ENTIRELY IN THE NATURE OF ADDITIONAL EVIDENCES AND IF SO, THE REASON WHY THE LD.CIT(A) DID NOT ADM IT THE ADDITIONAL EVIDENCES. THEREFORE, WE DO NOT HAVE THE BENEFIT OF A SPEAKING ORDER OF LD.CIT(A) ON THE ASPECTS RELATED TO SUBMISSIONS AND EVIDENCES FILED BY THE ASSESSEE BEFORE THE LD.CIT(A). IN THE FITNESS O F THINGS, THEREFORE, WE SET ASIDE THE ORDER OF LD.CIT(A) AND RESTORE THE EN TIRE MATTER TO THE FILE OF LD.CIT(A) WITH THE DIRECTION TO THE LD.CIT(A) TO PASS A DENOVO ORDER WHICH SHOULD BE A SPEAKING ORDER TAKING INTO COGNIZ ANCE, THE SUBMISSIONS AND EVIDENCES FILED BY THE ASSESSEE DUR ING APPELLATE PROCEEDINGS. (H). IN THE RESULT, THE APPEAL OF THE ASSESSEE IS P ARTLY ALLOWED. THE DECISION TO RESTORE THE MATTER TO THE FILE OF T HE LD.CIT(A) WAS PRONOUNCED IN THE OPEN COURT ON THE DATE OF HEARING ITSELF AFTER CONCLUSION OF THE HEARING. THIS WRITTEN ORDER IS P RONOUNCED IN THE OPEN COURT ON 19 TH APRIL 2017. SD/- SD/- (H.S.SIDHU) (ANADEE NATH MISSHRA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE:- 19 TH APRIL, 2017 *AMIT KUMAR* PAGE 12 OF 12 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGI STRAR ITAT NEW DELHI