DPS Bearing Pvt. Ltd., Ahmedabad V. The ACIT, Circle-1(1)(2), Ahmedabad

ITA 34/AHD/2022

AI Insights

The case involves DPS Bearings Private Limited, which appealed against the order of the Learned Commissioner of Income Tax (Appeals), Ahmedabad NFAC, Delhi, concerning an assessment order passed under section 144 of the Income Tax Act, 1961 for the Assessment Year 2017-18. The primary contention was the addition of Rs. 21,40,390 to the assessee's income, which was confirmed by the CIT(A). The assessee argued that the CIT(A) had passed the order ex parte and without proper consideration of the submissions and evidence provided, including financial statements and cash flow statements. The Tribunal noted the procedural lapses and the need for a thorough examination of the materials on record, leading to the decision to remand the matter back to the CIT-A for a fresh assessment.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 135616 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 10-01-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 01-02-2022
• Other Referred Cases: [2022] 134 taxmann.com 307 (SC)
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Period of limitation; Time period of passing order; Set aside
• Section: 144; 234B; 12A; 250; 69A; 139(4)

Judgement Text

आयकर आयकरआयकर आयकर अपी अपीअपी अपीलीय लीयलीय लीय अिधकरण अिधकरणअिधकरण अिधकरण, अहमदाबाद अहमदाबादअहमदाबाद अहमदाबाद यायपीठ यायपीठ यायपीठ यायपीठ IN THE INCOME TAX APPELLATE TRIBUNAL, ‘’ SMC” BENCH, AHMEDABAD SHRI WASEEM AHMED, ACCOUNTANT MEMBER आयकर अपील सं./ITA No. 34/AHD/2022 िनधा रण िनधा रणिनधा रण िनधा रण वष वष वष वष /Asstt. Year: 2017-2018 DPS Bearings Private Limited, B-508, Block C, Ganesh Meridian, Opp. Amiraj Farm, Nr. Gujarat High Court, S.G Highway, Ahmedabad-380013. PAN: AACCS6837L Vs. A.C.I.T, Circle-1(1)(2), Ahmedabad. (Applicant) (Respondent) Assessee by : Shri Jaimin Shah, A.R Revenue by : Shri Sanjaykumar, Sr. D.R सुनवाई क तारीख/Date of Hearing : 11/01/2023 घोषणा क तारीख /Date of Pronouncement: 17/03/2023 आदेश आदेशआदेश आदेश/O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the assessee against the order of the Learned Commissioner of Income Tax (Appeals), Ahmedabad NFAC, Delhi, dated 31/10/2021 arising in the matter of assessment order passed under s. 144 of the Income Tax Act, 1961 (here-in-after referred to as "the Act") relevant to the Assessment Year 2017-18. ITA no.34/AHD/2022 A.Y. 2017-18 2 2. The assessee has raised the following grounds of appeal: 01. That the Ld. Income Tax Officer Circle 1 (1 )(2), Ahmedabad has passed an order u/s 144 of the Income Tax Act, 1961 without considering return filled by the assesse and which is confirmed by CIT{A) is against the facts available on record and therefore the order passed may please be cancelled. 02. That the assesse has shown cash deposit of Rs. 11,53,000/- in their books of accounts, however addition made u/s 69A of the IT. Act which was confirmed by CIT(A) is against the Income Tax law and without jurisdiction, therefore it may please be deleted. 03. That the addition made by Ld. A.O. and confirmed by CIT(A) of Rs. 21,40,390/- without rejecting books of accounts of the assesee and therefore it requires to be deleted. 04. That the assesse has filled their reply on 30/11/2018 and on 26/09/2019 but without considering the same the huge addition made u/s 21.40.390/- is against the fact on record and therefore it requires to be deleted. 05. That the assesse has filed an adjournment application on 26/10/2021 to CIT(A) on E-proceeding portal, However order passed Ex-parte is against the principal of natural justice and without opportunity of being heard is requires to be deleted. 06. That the assesse has filled their return of Income within time allowed u/s 139(4) of the Income Tax Act, 1961 however the assessing officer has invalidated the return filled by the assesse is against the Income Tax law and elliged under reporting of Income of Rs. 9,87,389/- is against the facts available on record. Therefore the returned Income of the assesse may please be accepted. 07. That the appellant has neither given incorrect information nor given inaccurate particulars of Income and therefore penalty proceedings initiated u/s 271AAC, 271F, 270A(2), 271AAC of the I.T.Act, 1961 requires to be dropped. 08. That the appellant has neither committed default of Sec. 210 nor any default of advance payment of taxes and therefore unwanted interest charged u/s 234A 234B and 234C requires to be deleted. 09. Your appellant craves leave to add, amend, deleted or alter any of the grounds till the appeal is finally heard and decided. 3. The issue raised by the assessee in ground No. 5 is that the learned CIT-A erred in deciding the appeal ex-parte to the assessee after ignoring the adjournment petition filed dated 26 October 2021. 4. At the outset, I note that the appeal was presented by the assessee before the Tribunal against the order of the learned CIT-A dated 31 October 2021 with the delay about 34 days. It was explained by the learned AR that the appeal has been filed within the extended time as provided by the Hon’ble Supreme Court in ITA no.34/AHD/2022 A.Y. 2017-18 3 the MA No. 665 of 221 Cognizance for Extension of Limitation, reported in [2022] 134 taxmann.com 307 (SC). Accordingly, the learned AR prayed for the admission of the appeal filed by the assessee. The learned DR has not controverted the prayer made by the learned AR for the assessee. 5. Heard the rival contentions of both the parties and perused the materials available on record. The Hon’ble Supreme Court has observed as under: 8. Therefore, we dispose of the M.A. No. 665 of 2021 with the following directions: - I. In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15-3-2020 till 2-10-2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15-3-2021, if any, shall become available with effect from 3-10-2021. II. In cases where the limitation would have expired during the period between 15-3-2020 till 2-10-2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 3-10-2021. In the event the actual balance period of limitation remaining, with effect from 3-10-2021, is greater than 90 days, that longer period shall apply. III. The period from 15-3-2020 till 2-10-2021 shall also stand excluded in computing the periods prescribed under sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings. 5.1 The case of the assessee falls within the limitation period extended by the Hon’ble Supreme Court as discussed above. Accordingly, I condone the delay happened in filing the appeal by the assessee and proceed to adjudicate the issue on merit. 6. The facts in brief are that the assessee in the present case is a private limited company and was subject to the assessment under section 144 of the Act. At the outset, I note that there was no submission made by the assessee during the appellate proceedings. Thus, it is transpired that the appeal has been decided by the learned CIT-A without the assistance of the assessee. The relevant finding of the learned CIT-A reads as under: ITA no.34/AHD/2022 A.Y. 2017-18 4 4. During appellate proceedings, the appellant did not make any compliance of notice issued u/s 250 for hearing dated 23.01.2021 fixed for hearing on 08.02.2021. Again fresh notice issued on 21.10.2021 fixed for hearing on 26.10.2021. In response to the notice of hearing, no reply was uploaded nor any adjournment filed. 5. It is amply clear from the above chart mentioned supra that the appellant wilfully has not made compliance of statutory notice issued for hearing, reason best known to him. In view of the facts of the appellant case it is beyond doubt that the appellant is not bothered for the fate of appeal. The appellant has filed the present appeal merely to file an appeal. Thus, it is obvious that the appellant is not interested in disposal of appeal, since the appellant has nothing to say in regard to additions made of Rs. 21,40,390/- by the AO. Merely filing of appeal is not enough, if the appellant has filed appeal against the impugned assessment order passed u/s 144 of the Act agitating the additions made, by completing the assessment at Rs. 21,40,390/- in assessment order mention supra. The appellant is expected to reply to opportunity granted during appeal but the appellant did not do so. 7. Undeniably, the assessee should be vigilant enough after filing the appeal in pursuing the same. Justice is given to those who are awake and vigilant. The Justice cannot be delivered to those were not pursuing their matters before the concerned authorities despite the fact that the opportunities for hearing were extended to them. But the crucial question arises how the appeal should be decided by the learned CIT-A in the absence of any cooperation from the side of the assessee. In such a scenario, the learned CIT-A indeed can pass order ex parte to the assessee but after considering the materials available on record. As such the learned CIT-A in the event of non-cooperation from the assessee, does not get the right to ignore the materials which are available on record. 8. On perusal of the assessment order, I find that the assessee time and again has contended that the amount of cash was deposited out of the opening cash balance available with it. To this effect the assessee has filed the financial statements which are available on record. The assessee, likewise has also filed the cash flow statements to justify the source of cash deposits in the bank account. The assessee during the proceedings before the respective authorities has filed the paper book running from pages 1 to 250 which is available on record, containing lots of details against the finding of the authorities below. However, I note that the learned CIT-A without referring to the paper book which was ITA no.34/AHD/2022 A.Y. 2017-18 5 available before him has decided the issue against the assessee merely after observing the fact that the assessee did not cooperate during the proceedings. Admittedly, the learned CIT-A is empowered to decide the issue ex parte in the event of non-cooperation from the assessee but he cannot decide the issue without considering the materials available on record and that too in scientific manner. Accordingly, we are of the view that the assessee deserves one more opportunity to present its contention before the learned CIT-A. Accordingly, I inclined to set aside the issue to the file of the learned CIT-A for fresh adjudication as per the provisions of law. Hence the ground of appeal of the assessee is partly allowed for the statistical purposes. 9. As the issue on merit has been set aside to the file of the learned CIT-A for fresh adjudication, the other contentions/grounds of appeal raised by the assessee are connected to the main issue which has already been set aside, therefore I’m inclined to set aside all other grounds of appeal raised by the assessee before the ld. CIT-A for deciding them afresh as per the provisions of law and after giving the opportunity of being heard to the assessee. Hence, the ground of appeal of the assessee is allowed for the statistical purposes. 10. In the result, the appeal filed by the assessee is allowed for the statistical purposes. Order pronounced in the Court on 17/03/2023 at Ahmedabad. Sd/- Sd/-/- (SUCHITRA KAMBLE) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER (True Copy) Ahmedabad; Dated 17/03/2023 Manish