Murlimanohar Chetandas Agarwal, Mumbai V. DCIT 19(1), Mumbai

ITA 2388/MUM/2023

• Counselvise Citation: [2023] 102 COUNSELVISE.COM (IT) 0575 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-10-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: D
• Next Hearing Date: 18-10-2023
• Assessment Year: 2007-2008
• Appeal Filed On: 05-07-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Accommodation entries; Non compliance; Set aside
• Section: 147; 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “D” MUMBAI BEFORE SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND SHRI SANDEEP SINGH KARHAIL (JUDICIAL MEMBER) ITA No. 2388/MUM/2023 Assessment Year: 2007-08 Murlimanhor Chetandas Agarwal, DC-6210, Bharat Dimaond Bourse, BKC Bandra East Mumbai-400051. Vs. DCIT-19(1), Matru Mandir, Mumbai-400007. PAN No. AABPA 4295 N Appellant Respondent Assessee by : Mr. Suchak Anchaliya Revenue by : Mrs. Mahita Nair, DR Date of Hearing : 19/10/2023 Date of pronouncement : 25/10/2023 ORDER PER OM PRAKASH KANT, AM This appeal by the assessee is directed against order dated 15.05.2023 passed by the Ld. Commissioner of Income-tax (Appeals) – National Faceless Appeal Centre, Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2007-08, raising following grounds: 1. On the facts and in the circumstances of the case and in law, the Ld. NFAC erred in passing the order u/s 250 of the Act, ex-parte, without appreciating the fact that the appellant had duly made an application seeking adjournment of hearing, which was overlooked by the Ld. NFAC and the impugned order was passed without considering the adjournment request, which is against the principles of natural justice. 2. On the facts and NFAC erred in not considering that the assumption of jurisdiction by the Ld. Assessing Officer is bad in law as the conditions laid down under the Act for initiating reassessment proceeding u/s 147 of th Act have not been fulfilled. 3. On the facts and in the circumstances of the case and in law, the Ld. NFAC erred in confirming the 100% addition of the Purchases amounting to Rs. 23,31,177/ accommodation entries. 4. On the facts and in the circumstances of the case and in law, the Ld. CIT (A) erred in confirming the addition made by Id. AO, without providing any opportunity of cross examination, without any corroborative evidence and without providing copy of statemen upon. 2. We have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. The Ld. Counsel for the assessee submitted that though the assessee filed all the relevant details before the Ld. CIT( passed the order ex-parte without deciding the appeal on merit. We find that the Ld. CIT(A) mentioned non compliance of various notices issued the impugned order invoking the decisio of the Tribunal in the case of CIT v. Multiplan India Pvt. Ltd. reported in 38 ITD 320 (Delhi). The relevant finding of the Ld. CIT(A) is reproduced as under: “4.2 The Delhi Tribunal in CIT Vs. Multiplan India Pvt. Ltd. as in 38 ITD 320 (Delhi) when faced with a similar situation of non prosecution of appeal, dismissed the appeal of revenue. 4.3 Reliance is also placed in the case of Vipul Logistic & Warehousing (P) Ltd Vs. ITO, wherein the Hon'ble Delhi ITAT has co order of CIT(A) who dismissed the appeal of the taxpayer when there was no response to the notices issued. The observations and decision of the Hon'ble ITAT are as under: Murlimanohar Chetandas Agarwal 2. On the facts and in the circumstances of the case and in law the Ld. NFAC erred in not considering that the assumption of jurisdiction by the Ld. Assessing Officer is bad in law as the conditions laid down under the Act for initiating reassessment proceeding u/s 147 of th Act have not been fulfilled. 3. On the facts and in the circumstances of the case and in law, the Ld. NFAC erred in confirming the 100% addition of the Purchases amounting to Rs. 23,31,177/- by treating the genuine purchases as accommodation entries. On the facts and in the circumstances of the case and in law, the Ld. CIT (A) erred in confirming the addition made by Id. AO, without providing any opportunity of cross examination, without any corroborative evidence and without providing copy of statemen We have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. The Ld. the assessee submitted that though the assessee filed all the relevant details before the Ld. CIT(A) but the Ld. CIT(A) has parte without deciding the appeal on merit. We find that the Ld. CIT(A) in para 2 of the impugned order non compliance of various notices issued order invoking the decision of the Co- of the Tribunal in the case of CIT v. Multiplan India Pvt. Ltd. reported in 38 ITD 320 (Delhi). The relevant finding of the Ld. CIT(A) is reproduced as under: The Delhi Tribunal in CIT Vs. Multiplan India Pvt. Ltd. as in 38 ITD 320 (Delhi) when faced with a similar situation of non prosecution of appeal, dismissed the appeal of revenue. 4.3 Reliance is also placed in the case of Vipul Logistic & Warehousing (P) Ltd Vs. ITO, wherein the Hon'ble Delhi ITAT has confirmed even the order of CIT(A) who dismissed the appeal of the taxpayer when there was no response to the notices issued. The observations and decision of the Hon'ble ITAT are as under: Murlimanohar Chetandas Agarwal 2 ITA No. 2388/Mum/2023 in the circumstances of the case and in law the Ld. NFAC erred in not considering that the assumption of jurisdiction by the Ld. Assessing Officer is bad in law as the conditions laid down under the Act for initiating reassessment proceeding u/s 147 of the 3. On the facts and in the circumstances of the case and in law, the Ld. NFAC erred in confirming the 100% addition of the Purchases by treating the genuine purchases as On the facts and in the circumstances of the case and in law, the Ld. CIT (A) erred in confirming the addition made by Id. AO, without providing any opportunity of cross examination, without any corroborative evidence and without providing copy of statements relied We have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. The Ld. the assessee submitted that though the assessee filed A) but the Ld. CIT(A) has parte without deciding the appeal on merit. We in para 2 of the impugned order has non compliance of various notices issued and passed -ordinate Bench of the Tribunal in the case of CIT v. Multiplan India Pvt. Ltd. reported in 38 ITD 320 (Delhi). The relevant finding of the Ld. CIT(A) The Delhi Tribunal in CIT Vs. Multiplan India Pvt. Ltd. as reported in 38 ITD 320 (Delhi) when faced with a similar situation of non- 4.3 Reliance is also placed in the case of Vipul Logistic & Warehousing nfirmed even the order of CIT(A) who dismissed the appeal of the taxpayer when there was no response to the notices issued. The observations and decision "We have heard rival submissions and have gone through the entire ma us, assessee has not raised any such ground about the assessment being time barred. Therefore, since the plea raised by the assessee does not arise out of its grounds of appeal, the same is dismissed. which is passed ex the assessee. Therefore, the assessee's appeal is dismissed." 4.4 In view of these facts, I am of the opinion that no interference is called for in th dismissed.” 2.1 We find that under the provisions of section 250(6) of the Income-tax Act, 1961 (in short ‘the Act’), the Ld. CIT(A) is required to decide the grounds raised by the assessee and pass a r order even in absence of any representation by the assessee. Since, in the instant case, the Ld. CIT(A) has not decided the issue in dispute on merit and therefore, we feel it appropriate to set aside the order of the Ld. CIT(A) and restore the mat deciding afresh after taking into consideration submission of the assessee. The grounds of appeal of the assessee are accordingly allowed for statistical purposes. 3. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open Court on Sd/ (SANDEEP SINGH KARHAIL JUDICIAL MEMBER Mumbai; Dated: 25/10/2023 Rahul Sharma, Sr. P.S. Murlimanohar Chetandas Agarwal "We have heard rival submissions and have gone through the entire material available on record. In the grounds filed before us, assessee has not raised any such ground about the assessment being time barred. Therefore, since the plea raised by the assessee does not arise out of its grounds of appeal, the same is dismissed. We see no infirmity on the order of CIT(A) which is passed ex-parte due to deliberate non-cooperation of the assessee. Therefore, the assessee's appeal is dismissed." 4.4 In view of these facts, I am of the opinion that no interference is called for in the AO's order and therefore, the grounds of appeal are We find that under the provisions of section 250(6) of the tax Act, 1961 (in short ‘the Act’), the Ld. CIT(A) is required to decide the grounds raised by the assessee and pass a r order even in absence of any representation by the assessee. Since, in the instant case, the Ld. CIT(A) has not decided the issue in dispute on merit and therefore, we feel it appropriate to set aside the order of the Ld. CIT(A) and restore the matter back to him for deciding afresh after taking into consideration submission of the assessee. The grounds of appeal of the assessee are accordingly allowed for statistical purposes. In the result, the appeal filed by the assessee is allowed for nounced in the open Court on 25/10/2023. Sd/- Sd/ SANDEEP SINGH KARHAIL) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT MEMBER Murlimanohar Chetandas Agarwal 3 ITA No. 2388/Mum/2023 "We have heard rival submissions and have gone through the terial available on record. In the grounds filed before us, assessee has not raised any such ground about the assessment being time barred. Therefore, since the plea raised by the assessee does not arise out of its grounds of appeal, the We see no infirmity on the order of CIT(A) cooperation of the assessee. Therefore, the assessee's appeal is dismissed." 4.4 In view of these facts, I am of the opinion that no interference is e AO's order and therefore, the grounds of appeal are We find that under the provisions of section 250(6) of the tax Act, 1961 (in short ‘the Act’), the Ld. CIT(A) is required to decide the grounds raised by the assessee and pass a reasoned order even in absence of any representation by the assessee. Since, in the instant case, the Ld. CIT(A) has not decided the issue in dispute on merit and therefore, we feel it appropriate to set aside ter back to him for deciding afresh after taking into consideration submission of the assessee. The grounds of appeal of the assessee are accordingly In the result, the appeal filed by the assessee is allowed for /10/2023. Sd/- OM PRAKASH KANT) ACCOUNTANT MEMBER Copy of the Order forwarded to 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. //True Copy// Murlimanohar Chetandas Agarwal Copy of the Order forwarded to : BY ORDER, (Assistant Registrar) ITAT, Mumbai Murlimanohar Chetandas Agarwal 4 ITA No. 2388/Mum/2023 BY ORDER, (Assistant Registrar) ITAT, Mumbai