ITO, Noida V. M/s. Sarvottam Overseas (P) Ltd., Noida

ITA 4006/DEL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3583 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 12-07-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MANISHA KUMARI
• Keywords: Bogus purchase; Unexplained investment; Unexplained expenditure; Opportunity of being heard; Principle of natural justice
• Section: 142(1); 234B; 68; 144; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G , NEW DELHI BEFORE SH. N. K. SAINI, AM AND MS. SUCHITRA KAMBLE , JM ITA NO. 4006 /DEL/2016 : ASSTT. YEAR : 2009 - 10 INCOME TAX OFFICER, WARD - 1(4 ), NOIDA - 201301 (U.P.) VS M/S SARVOTTAM OVERSEAS PVT. LTD., SF - 46, 2 ND FLOOR, ANSAL FORTUNE PLAZA, SECTOR - 18, NOIDA - 201301 (APPELLANT) (RESPONDENT) PAN NO. A A LCS4191G ITA NO. 2443/DEL/2017 : ASSTT. YEAR : 2009 - 10 M/S SARVOTTAM OVERSEAS PVT. LTD., C/O M/S RRA TAXINDIA, D - 28, SOUTH EXTENSION, PART - I, NEW DELHI - 110049 VS INCOME TAX OFFICER, WARD - 1(4), NOIDA - 201301 (U.P.) (APPELLANT) (RESPONDENT) PAN NO. AALCS4191G ASSESSEE BY : SH. DEEPESH GA RG, ADV. REVENUE BY : SMT. MANISH A KUMARI, SR. DR DATE OF HEARING : 18 .01 .201 8 DATE OF PRONOUNCE MENT : 01 .02 .201 8 ORDER PER N. K. SAINI, AM : THESE CROSS APPEALS BY THE DEPARTMENT AND THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 31.03. .2016 OF LD. CIT( A ) - I , NOIDA . 2. SINCE , THE APPEALS WERE HEARD TOGETHER SO THESE ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 3. IN THE DEPARTMENTAL APPE AL, F OLLOWING GROUNDS HAVE BEEN RAISED: ITA NO . 4006 /DE L/2016 ITA NO. 2443/DEL/2017 SARVOTTAM OVERSEAS PVT. LTD. 2 1. THE CIT (APPEALS) - I , NOIDA HAS ERRED IN LAW AS WELL AS ON FACTS IN DELETING THE ADDITION OF RS. 49,58,486/ - WITHOUT APPRECIATING THE FACTS THAT ASSESSING OFFICER WAS NOT SATISFIED WITH THE CORRECTNESS OR COMPLETE NESS OF THE ACCOUNT BOOKS OF THE ASSESSEE AND RIGHTLY REJECTED THE SAME UNDER SECTION 145(3) OF THE I .T. ACT AND ESTIMATED THE INCOME. 2. THE C IT(APPEALS) - I , NOIDA HAS ERRED IN LAW AS WELL AS ON FACTS BY HOLDING THAT WHEN AO RESORTING TO THE PROVISIONS OF SECTION 145(3) IS BOUND TO PASS THE ASSESSMENT ORDER UNDER SECTION 144 OF THE I .T, ACT, 1961 BUT WHICH IS NOT IN CONFORMITY OF PROVISIONS CONTAINED IN SECTION 145(3) WHEREIN IT HAS BEEN PRESCRIBED THAT ''WHERE THE ASSESSING OFFICER IS NOT SATISFIED ABOUT THE CORRECTNESS OR COMPLETENESS OF THE ACCOUNTS OF THE ASSESSEE, OR WHERE THE METHOD OF ACCOUNTING PROVIDED IN SUB - SECTION (1) OR ACCOUNTING STANDARDS AS NOTIFIED UNDER SUB - SECTION (2), HAVE NOT BEEN REGULARLY FOLLOWED BY THE ASSESSEE, THE ASSESSING OFFICE R MAY MAKE AN ASSESSMENT IN THE MANNER PROVIDED IN SECTION 144. IN THE SECTION 145(3) THE STATUTE HAS USED THE WORD 'MAY' AND 'IN TH E MANNER PROVIDED IN SECTION 14 . 3. THAT THE APPELLANT CRAVES TO LEAVE, ADD, ALTER AND AMEND ANY OF THE GROUNDS OF APPEAL ON OR BEFORE HEARING. 4. THE CIT( APPEALS) - THAT THE ORDER OF THE CIT (A) BEING ERRONEOUS IN LAW AND ON FACTS AND DESERVES TO BE SET ASIDE/ CANCELLED AND THE ORDER OF THE ASSESSING OFFICER BE RESTORED. 4 . THE GROUNDS RAISED IN THE ASSESSEE S APPEAL READ AS UNDER: 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN PASSING THE IMPUGNED ORDER AND THAT TOO WITHOUT GIVING ADEQUATE OPPORTUNITY OF BEING HEARD, MORE SO WHEN THE DIRECTOR MR. SARVOTTAM SEH GAL WAS IN JUDICIAL CUSTODY AT THE RELEVANT TIME. ITA NO . 4006 /DE L/2016 ITA NO. 2443/DEL/2017 SARVOTTAM OVERSEAS PVT. LTD. 3 2. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, ACTION OF LD. CIT(A) IN PASSING THE EX - PARTE ORDER IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN MAKING FOLLOWING ADDITIONS U/S 68 AND THAT TOO AFTER REJECTING THE BOOKS OF ACCOUNT OF ASSESSEE AND WITHOUT OBSERVING THE PRINCIPLES OF NATURAL JU STICE. RS.1,69,67,350/ - ON ACCOUNT OF UNSECURED LOAN. RS.12,67,45,295/ - ON ACCOUNT OF TRADE CREDITORS. RS.26,23,583/ - UNDER THE HEAD OVERSEAS COMMISSION. 4. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN NOT ALLOWING FOREIGN EXCHANGE FLUCTUATION LOSS OF RS.5,72,656/ - ARID HAS ERRED IN OBSERVING THAT ASSESSEE HAS NOT PRODUCED DOCUMENTARY EVIDENCE IN SUPPORT OF ITS CLAIM WITH REGARD TO FOREIGN EXCHANGE. 5. THAT H AVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN NOT ALLOWING THE LOSS FROM SALE/PURCHASE MADE WITH THREE PARTIES AS MENTIONED IN PARA 5 OF THE ASSESSMENT ORDER AND THAT TOO BY OBSERVING THAT ASSESSEE HAS NOT ADDUCED DOCUMENTARY EVIDENCE IN THIS REGARD. 6. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN NOT ALLOWING THE PURCHASE FROM M/S KISAN STEEL CORPORATION. ITA NO . 4006 /DE L/2016 ITA NO. 2443/DEL/2017 SARVOTTAM OVERSEAS PVT. LTD. 4 7. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN EXERCISING HIS JURISDICTION U/S 251(1)(A) AND MAKING THE ENHANCEMENT OF INCOME BY MAKING THE FOLLOWING ADDITIO NS/DISALLOWANCES AND THAT TOO WITHOUT GIVING ADEQUATE OPPORTUNITY OF BEING HEARD IN THIS REGARD AND BY RECORDING INCORRECT FACTS AND FINDINGS AND WITHOUT OBSERVING THE PRINCIPLES OF NATURAL JUSTICE. RS.98,53,525/ - ON ACCOUNT OF RESERVE AND SURPLUS U/S 69A . RS.38,65,820/ - ON ACCOUNT OF UNEXPLAINED INVESTMENT. RS.1,03,89,000/ - ON ACCOUNT OF UNSECURED LOANS AND SUNDRY DEPOSITS U/S 69/69C. RS.43,925/ - ON ACCOUNT OF UNACCOUNTED INVESTMENT/UNACCOUNTED EXPENDITURE U/S 69 AND 69C. RS. 60,00,000/ - BY TREATING IT AS INCOME OF THE APPELLANT U/S 69A. RS.31,43,267/ - BY TREATING IT AS INCOME OF THE APPELLANT U/S 69, 69A AND 69C. RS.4,81,98,697/ - ON ACCOUNT OF LOANS AND ADVANCES BY TREATING IT AS INCOME OF THE APPELLANT U/S 69, 69A. RS. 8,27,35,779/ - ON ACCOUNT OF SUNDRY CREDITORS BY TREATING IT AS INCOME OF THE APPELLANT U/S 69, 69A. RS.12,67,45,295/ - ON ACCOUNT OF SUNDRY CREDITORS. RS.50,000/ - ON ACCOUNT OF EXPENSES PAYABLE. RS.3,38,748/ - ON ACCOUNT OF ADMINISTRATIVE EXPENSES. RS.20,98,892/ - ON ACCOUNT OF INTEREST PAID. RS.27,11,173/ - ON ACCOUNT OF OVERSEAS COMMISSION. RS.2,02,327/ - ON ACCOUNT OF VARIOUS OTHER EXPENSES. RS.98,10,000/ - ON ACCOUNT OF SHARE APPLICATION MONEY U/S 68 AND 69A. ITA NO . 4006 /DE L/2016 ITA NO. 2443/DEL/2017 SARVOTTAM OVERSEAS PVT. LTD. 5 RS.4,11,98,090/ - ON ACCOUNT OF ADVANCES MADE TO VARIOUS PARTIES U/S 69. RS.7,79,78,18 6/ - ON ACCOUNT OF ALLEGED BOGUS PURCHASES. 8. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, ACTION OF LD. CIT(A) IN MAKING ENHANCEMENT OF INCOME OF THE APPELLANT IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 9. THAT HAVING REGARD T O THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN CHARGING INTEREST U/S 234B OF THE INCOME TAX ACT, 1961. 10. THAT THE APPELLANT CRAVES THE LEAVE TO ADD, MODIFY, AMEND OR DELETE ANY O F THE GROUNDS OF APPEAL AT THE TIME OF HEARING AND ALL THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 5 . THE MAIN GRIEVANCE OF THE ASSESSEE VIDE GROUND NOS. 1 & 2 RELATES TO THE EX - PARTE ORDER PASSED BY THE LD. CIT(A) WITHOUT PROVIDING ADEQUATE O PPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6 . FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE E - FILED THE RETURN OF INCOME ON 27.09.2009 SHOWING AN INCOME OF RS.62,02,190/ - WHICH WAS REVISED ON 26.03.2010 SHOWING AN INCOME OF RS.5,75,390/ - . THEREAFTER, T HE CASE WAS SELECTED FOR SCRUTINY. SINCE, MOST OF THE NOTICES ISSUED U/S 142(1) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) REMAINED UNCOMPLIED, T HE AO COMPLETED THE ASSESSMENT ON THE BASIS OF THE MATERIAL AVAILABLE ON THE RECORD AND M ADE THE VARIOUS ADDITIONS ON ACCOUNT OF UNEXPLAINED UNSECURED LOANS , TRADE CREDITORS U/S 68 OF ITA NO . 4006 /DE L/2016 ITA NO. 2443/DEL/2017 SARVOTTAM OVERSEAS PVT. LTD. 6 THE ACT AND THE BOGUS OVERSEAS COMMISSION PAID. THE INCOME WAS ASSESSED AT RS.15,18,70,100/ - . 6. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT (A) WHO DECIDED THE APPEAL EX - PARTE AND ENHANCED THE INCOME TO RS.42,59,38,114/ - . THE LD. CIT(A) MENTIONED IN THE IMPUGNED ORDER THAT WHENEVER THE CASE WAS FIXED FOR HEARING, THE VARIOUS COUNSEL S APPEARED AND SOUGHT ADJOURNMENT S . THE RELEVANT OBSERVATIONS OF THE LD. CIT(A) IN PARAS 2 TO 6 OF THE IMPUGNED ORDER READ AS UNDER: 2. THE ASSESSMENT IN THIS CASE WAS COMPLETED BY THE ID. A.O. BASED UPON THE SPECIAL AUDIT WHICH WAS CONDUCTED AS PER RULES U/S. 142(2A) OF I.T. ACT 1961. THE APPELLANT FELT AGGRIEVED A ND THEREAFTER THE PRESENT APPEAL WAS FILED. THE APPE AL WAS FILED ON 10/07/2012 BY M/ S. R.RA TAX INDIA ON BEHALF OF THE APPELLANT AND HAS REMAINED PENDING SINCE THEN. THE APPEAL WAS FIXED FOR 26/12/2012 AND NECESSARY NOTICES WERE ISSUED TO THE APPELLANT THR OUGH THE AUTHORIZED REPRESENTATIVE M/S, R.R.A. TAX INDIA. THERE WAS NO RESPONSE FROM THE APPELLANT ON THE APPOINTED DATE. HOWEVER, ON 08/01/2013 A LETTER WAS RECEIVED FROM THE APPELLANT THAT IT HAD AUTHORIZED SHRI SANJAY KUMAR TO SUBMIT A LETTER TO THIS OF FICE AND ANOTHER LETTER WAS FILED BY THE APPELLANT AND NOT THE ID. COUNSEL CLAIMING THAT THE ID. COUNSEL OF THE APPELLANT M/S. R.R.A. TAX INDIA WAS BUSY WITH COMPILING THE INFORMATION REGARDING THE ABOVE SAID APPEAL. IT WAS FURTHER CLAIMED THAT IN VIEW OF MANY INTERLINKED INFORMATION TO BE PROVIDED THE CASE SHOULD BE ADJOURNED TO 07/02/2013. THE APPEAL WAS FILED BY THE APPELLANT ON 10/07/2012 AGAINST AN ORDER PASSED ON 11/06/2012 THROUGH A DULY APPOINTED COUNSEL AND THE APPELLANT HAD SUFFICIENT TIME TO ENCL OSE WHATEVER DOCUMENTS IT CONSIDER NECESSARY TO SUPPORT ITS GROUNDS OF APPEAL. TILL 08/01/2013 NO HEARING HAD TAKEN PLACE AND NO ITA NO . 4006 /DE L/2016 ITA NO. 2443/DEL/2017 SARVOTTAM OVERSEAS PVT. LTD. 7 D OCUMENTS WERE CALLED FOR BY THIS OFFICE. IT IS THEREFORE DIFFICULT TO APPRECIATE THAT THE ID. COUNSEL OF THE APPELLANT WHICH I S A FIRM OF ADVOCATES AND C.AS. WAS BUSY COMPILING VARIOUS DOCUMENTS REGARDING THE PENDING APPEAL. IT IS ALL THE MORE DIFFICULT TO ACCEPT THAT THIS CLAIM ABOUT THE ID. COUNSEL BEING BUSY WITH COMPILING THE INFORMATION REGARDING APPEAL WAS MADE BY THE APPEL LANT AND NOT BY THE ID. COUNSEL. WHILE THE ID. COUNSEL CAN ADVANCE AN ARGUMENT ON BEHALF OF THE APPELLANT THE APPELLANT CANNOT DO SO ON BEHALF OF THE ID. COUNSEL. IT IS BUT OBVIOUS THAT THE APPELLANT WAS RESORTING TO DILATORY TACTICS TO DELAY THE APPEAL. I N ANY CASE TILL SUCH TIME THE APPELLANT HAD NOT WITHDRAWN THE VAKALATNAMA ISSUED IN FAVOUR OF THE ID. COUNSEL IT COULD NOT HAVE APPEARED IN THE PRESENT APPEAL ON ITS OWN. I N VIEW OF THIS THE LETTER DATED 08/01/2013 AS SUBMITTED BY THE APPELLANT ON BEHALF O F THE ID. COUNSEL HAS NOT SANCTITY IN THE EYES OF THE LAW AND CANNOT BE TAKEN INTO CONSIDERATION IN THE PRESENT APPEAL. 3. THE CASE WAS FIXED FOR 17/01/2013 BUT AGAIN THE APPELLANT DIRECTLY FILED A LETTER ON 17/01/2013 CLAIMING THAT IT HAS NOT YET BEEN AB LE TO COLLECT THE COPIES OF THE DOCUMENTS AND ASKED FOR FIXING OF CASE IN THE FIRST WEEK OF FEBRUARY 2013. ON 24/01/2013 THE APPELLANT INFORMED AGAIN DIRECTLY THAT IT HAS BEEN GIVEN THE NECESSARY DOCUMENTS BY THIS OFFICE THREE DAYS BACK AND THE COUNSEL OF THE APPELLANT NEEDS TIME TO COMPILE AND PREPARE ALL THE ACCOUNTS TO BE PRESENTED BEFORE THE UNDERSIGNED. BASED ON SUCH CLAIMS THE APPELLANT ASKED THAT ITS CASE BE FIXED ON OR AFTER 05/02/2013. ON 05/02/2013 THE APPELLANT WHICH IS A COMPANY HAVING PROPER CO MPLIMENT OF DIRECTORS AND EMPLOYEES SUBMITTED A LETTER AGAIN DIRECTLY THAT THE BHABHI OF C.A. SH. VIJAY KAPOOR WHO WAS PREPARING THE DOCUMENTS HAS SUFFERED BRAIN HEMORRHAGE AND THEREFORE, THEY COULD NOT PRODUCE THOSE DOCUMENTS. BASED ON THIS THE APPELLANT ASKED THAT ITS CASE BE REFIXED ON OR AFTER 15/02/2013. ITA NO . 4006 /DE L/2016 ITA NO. 2443/DEL/2017 SARVOTTAM OVERSEAS PVT. LTD. 8 4. THE CASE WAS AGAIN FIXED FOR 09/04/2013. ANOTHER VAKALATNAMA WAS FILED BY THE COUNSELS OF THE APPELLANT M/ S. R.R.A. TAX INDIA WHICH WAS UNDATED BUT FILED IN THIS OFFICE ALONG WITH A LETTER 09/04/20 13 IN WHICH THE NAME OF C.A. SH. VIJAY KUMAR WAS NOT EVEN MENTIONED THOUGH HIS NAME APPEARED IN THE VAKALATNAMA ISSUED ON 06/07/2012. THE UNDATED VAKALATNAMA WAS THEREFORE NOT ACCEPTED BY THE C.A. SH. VIJAY KUMAR. IN ANY CASE THIS TIME THE APPELLANT THROUG H ITS COUNSEL MISS ANKITA ARORA, C.A. SUBMITTED THAT SH. KAILASH MITTAL, ADVOCATE WHO WAS SUPPOSED TO ARGUE THE CASE WAS NOT IN GOOD HEALTH AND WAS NOT IN A POSITION TO APPEAR AND THEREFORE, AN ADJOURNMENT WAS SOUGHT. SUBSEQUENTLY, THE CASE WAS FIXED FOR H EARING ON 16/04/2014 AND ON THAT DATE SH. VARUN SEHGAL CLAIMING TO BE DIRECTOR OF THE APPELLANT COMPANY APPEARED AND ASKED FOR ADJOURNMENT. THE CASE WAS ADJOURNED FOR 05/05/2014 AND ON THAT DATE MISS ANKITA ARORA, CA ASKED FOR AN ADJOURNMENT. THE CASE WAS ADJOU RNED TO 20/05/2014 WHEN SH. KAIL ASH MITTAL, ADVOCATE APPEARED AND FILED A REJOINDER. CASE WAS PARTLY HEARD AND ADJOURNED TO 04/06/2014 WHEN MISS PRACHI KOHLI APPEARED AND ASKED FOR ADJOURNMENT WHICH WAS GRANTED AND CASE WAS FIXED FOR 12/06/2014. HOWEV ER, THERE WAS NO COMPLIANCE ON THAT DATE. CASE WAS AGAIN FIXED FOR 18/12/2014, 26/12/2014, 16/03/2015, 24/03/2015 BUT ON NONE OF THESE DATES THERE WAS ANY RESPONSE. 5. THE CASE WAS FIXED FOR 03/06/2015 WHEREUPON A LETTER WAS FILED IN THE DAK STATING THAT THE WRITTEN SUBMISSIONS HAS ALREADY BEEN FILED AND THEREFORE THE APPEAL MAY BE DECIDED BASED UPON THE WRITTEN SUBMISSIONS. AFTER THE CHANGE OF THE INCUMBENT IN THE OFFICE OF CIT(A) - 1, NOIDA THE CASE WAS AGAIN FIXED FOR 21/01/2016. HOWEVER, AGAIN THERE WAS NO RESPONSE. THE CASE WAS AGAIN FIXED FOR 26/02/2016 AND AGAIN THERE WAS NO RESPONSE. NEITHER ANY ONE APPEARED NOR ANY REQUEST FOR ADJOURNMENT WAS MADE. ITA NO . 4006 /DE L/2016 ITA NO. 2443/DEL/2017 SARVOTTAM OVERSEAS PVT. LTD. 9 6. FROM THE CONDUCT OF PROCEEDINGS OVER LAST ABOUT FOUR YEARS IT IS CLEAR THAT THE APPELLANT WAS NEVER INTERESTED IN GETTING ITS APPEAL DECIDED ON MERITS AND WAS ALWAYS SEEKING ON ONE EXCUSE OR ANOTHER TO DELAY THE APPEAL. THE APPELLANT WAS MAKING ALL SORTS OF CLAIMS ON BEHALF OF ITS COUNSELS WHICH WAS NEITHER PERMISSIBLE IN LAW NOR WAS DESIRABLE. THE CLAI M OF THE APPELLANT THAT IT WAS PREPARING DOCUMENTS TO BE FILED IS NEITHER ADMISSIBLE NOR NECESSARY AS IT WAS THE APPEAL OF THE APPELLANT AND APPELLANT HAS ALL THE TIME AND LIBERTY TO ENCLOSE WHATEVER DOCUMENTS IT CONSIDERED TO BE NECESSARY FOR JUST AND FAI R ADJUDICATION OF ITS APPEAL. THE GROUNDS OF APPEAL AS TAKEN BY THE APPELLANT MADE NO MENTION THAT THE APPELLANT HAS NOT BEEN ABLE TO ENCLOSE ALL THE NECESSARY DOCUMENTS AND NEEDED TIME TO FILE THOSE DOCUMENTS. IT IS BUT OBVIOUS THAT THE APPELLANT WAS SIMP LY WASTING TIME TO DISTRACT ATTENTION FROM THE MAIN ISSUES. NO DOCUMENTS WERE CALLED FOR BY THIS OFFICE NOR AT ANY POINT OF TIME THE APPELLANT WAS ASKED TO FILE ANY WRITTEN SUBMISSION. I HAVE THE BENEFIT OF PERUSING THE ORDER SHEET AS MAINTAINED BY MY ID, PREDECESSOR AND THERE IS NO DIRECTION GIVEN AT ANY POINT OF TIME BY MY ID. PREDECESSOR TO FILE ANY WRITTEN SUBMISSION OR ANY ADDITIONAL DOCUMENT. THE APPELLANT IS THEREFORE, MAKING INADMISSIBLE AND UNNECESSARY ARGUMENTS TO DIGRESS FROM THE MAIN ISSUE. 7 . NOW BOTH THE PARTIES ARE IN APPEAL. THE DEPARTMENT IS IN APPEAL ON THE ISSUES RELATING TO THE DELETION OF ADDITION S MADE BY THE AO WHILE THE ASSESSEE IS IN APPEAL AGAINST THE ADDITION S SUSTAINED/ ENHANCEMENT MADE AND NO OPPORTUNITY BEING PROVIDED BY THE L D. CIT(A). THE LD. COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET STATED THAT NO NOTICE OF HEARING WAS SERVED UPON THE ASSESSEE AND THAT THE DIRECTOR MR. SARVOTTAM SEHGAL WAS IN THE JUDICIAL CUSTODY ITA NO . 4006 /DE L/2016 ITA NO. 2443/DEL/2017 SARVOTTAM OVERSEAS PVT. LTD. 10 WHEN THE IMPUGNED ORDER WAS PASSED WITHOUT PROVIDING A DUE A ND REASONABLE OPPORTUNITY OF BEING HEARD. 8. IN HIS RIVAL SUBMISSIONS, LD. DR SUBMITTED THAT THE ABUNDANT OPPORTUNITIES OF BEING HEARD WERE PROVIDED BY THE LD. CIT(A) WHICH W ERE NOT AVAILED BY THE ASSESSEE, T HEREFORE, THERE WAS NO ALTERNATIVE EXCEPT TO DE CIDE THE APPEAL OF THE ASSESSEE ON MERIT ON THE BASIS OF DOCUMENTS AVAILABLE ON THE RECORD. 9. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE APPEAL OF THE ASSESSEE WAS DECIDED BY THE LD. CIT(A) EX - PARTE. HE SIMPLY MENTIONED IN PARA 5 OF THE IMPUGNED ORDER THAT THE CASE WAS FIXED FOR HEARING ON 26.02.2016 BUT THERE WAS NO RESPONSE. HOWEVER, NOWHERE HE MENTIONED THAT THE NOTICE FOR HEARING ON THE SAID DATE WAS SERVED UPON THE ASSESSEE. IT IS ALSO NOTICED THAT THE LD. CIT(A) HAD NOT ACCEPTED THIS CLAIM OF THE ASSESSEE THAT IT WAS PREPARING DOCUMENTS TO BE FILED , FOR THE REASON THAT THE ASSESSEE HAD NOT MENTIONED IN THE GROUNDS OF APPE AL THAT IT HAD NOT BEEN ABLE TO ENCLOSE ALL THE NECESSARY DOCUMENTS AND NEEDED TIME TO FILE THOSE DOCUMENTS , HE ALSO MENTIONED THAT THERE WAS NO DIRECTION GIVEN AT ANY POINT OF TIME BY HIS PREDECESSOR TO FILE THE WRITTEN SUBMISSION OR ANY ADDITIONAL DOCUME NT. FORM THE ABOVE OBSERVATIONS OF THE LD. CIT(A), IT APPEARS THAT PROPER OPPORTUNITY OF BEING HEARD WAS NOT PROVIDE D AND EVEN THE DOCUMENTS SOUGHT TO BE FILED BY THE ASSESSEE/COUNSEL OF THE ASSESSEE WERE NOT PERMITTED TO BE FILED. ITA NO . 4006 /DE L/2016 ITA NO. 2443/DEL/2017 SARVOTTAM OVERSEAS PVT. LTD. 11 MOREOVER, NO NOTICE FOR ENHANCEMENT OF INCOME WAS GIVEN TO THE ASSESSEE. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM . WE, THEREFORE, DEEM IT APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER AND REMAND THE MATTER BACK TO THE FILE O F THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD. WE ALSO DIRECT THE ASSESSEE TO COOPERATE AND NOT TO SEEK UNDUE OR UNWARRANTED ADJOURNMENTS BEFORE THE LD. CIT(A). 9 . IN THE R ESULT, THE APPEAL S OF BOTH THE PARTIES ARE ALLOWED FOR STATISTICAL PURPOSES. ( ORDER PRON OUNCED IN THE COURT ON 01 /0 2 / 2018 ) SD/ - SD/ - ( SUCHITRA KAMBLE ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT M EMBER DATED: 01 /0 2 /2018 *SUBODH* COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR