M/S. UNIJULES LIFE SCIENCES LTD., NAGPUR V. ASSISTNAT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2(1), NAGPUR

ITA 45/NAG/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 3223 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-03-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 06-02-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bogus purchase; Depreciation; Search and seizure
• Section: 154; 143(3); 153A; 250; 251; 246A

Judgement Text

।आयकर अपीलीय अिधकरण Ɋायपीठ नागपुर मŐ। IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH : : NAGPUR [VIRTUAL HEARING AT PUNE] BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER आयकर अपील सं. / ITA No.45/NAG/2023 िनधाᭅरण वषᭅ / Assessment Year : 2012-13 M/s.Unijules Life Sciences Ltd., B-35/36, MIDC, Kamleshwar, Nagpur – 441501 PAN: AAACU8032D V s The Assistant Commissioner of Income Tax, Central Circle-2(1), Nagpur. Appellant / Assessee Respondent / Revenue Assessee by Shri Kapil Hirani – Adv.-AR Revenue by Shri Kailash C. Kanojiya – CIT-DR Date of hearing 27/03/2024 Date of pronouncement 28/03/2024 आदेश/ ORDER PER DR. DIPAK P. RIPOTE, AM: This is an appeal filed by the Assessee against the order of ld.Commissioner of Income Tax(Appeals)-3, Nagpur under section 250 of the Act, dated 08.11.2011 for the A.Y.2012-13 emanating from the order under section 153A r.w.s 143(3) of ITA No.45/NAG/2023 M/s.Unijule Life Sciences Ltd., [A] 2 the Act, dated 30.03.2016. The assessee has raised the following grounds of appeal : “1) The Assessment u/s 153A r.w.s 143(3) of Income Tax Act, 1961 (“Act”) is illegal, invalid and deserves to quashed in the interest of justice. 2) On the facts and circumstances of the case and in law, in view of order dated 08.03.2019 passed by Hon’ble NCLT declaring moratorium u/s 14 of Insolvency and Bankruptcy Code, 2016 (“l&B Code”) the order passed by Hon’ble CIT(A) dated 08.11.2021 is bad in law and liable to be quashed in the interest of justice. 3) On the facts and circumstances of the case and in law, the AO grossly erred in making and the CIT(A) grossly erred in confirming addition of Rs.62,53,875 treating the purchases made by the Appellant to that extent as bogus purchases which is illegal and the addition so made deserves to be deleted as per law. 4) On the facts and circumstances of the case and in law, the AO grossly erred in making and the CIT(A) grossly erred in confirming addition of Rs. 25,78,395 as cash payments not recorded in the books of accounts which is illegal, and which deserves to be deleted as per law. 5) On the facts and circumstances of the case and in law, the AO grossly erred in making and the CIT(A) grossly erred in confirming addition of Rs. 1,07,90,655 allegedly representing unaccounted cash payments which is illegal, and which deserves to be deleted as per law. 6) On the facts and circumstances of the case and in law, the AO grossly erred in making and the CIT(A) grossly erred in confirming addition of Rs. 1,07,50,000 allegedly representing unaccounted cash payments which is illegal, and which deserves to be deleted as per law. 7) On the facts and circumstances of the case and in law, the AO grossly erred in making and the CIT(A) grossly erred in confirming addition of Rs. 2,05,40,535 representing disallowance of depreciation on purchase of assets allegedly held bogus which is illegal, and which deserves to be deleted as per law. ITA No.45/NAG/2023 M/s.Unijule Life Sciences Ltd., [A] 3 8) On the facts and circumstances of the case and in law, the assessment being a case of unabated assessment, the additions to the extent not emanated from incriminating material found during the course of search are illegal and which deserves to be deleted as per law.” Findings & Analysis : 2. In this case, it is observed that the ld.CIT(A) vide its order dated 08.11.2021 has dismissed appeal of the assessee as under were hereby reproduced the order of ld.CIT(A) in para 3.4 as under : “3.4 I find that the AO has given adequate justification by passing an order u/s. 154 of the Act, 1961. On the other hand, the appellant has not made any submission to rebut the findings given by the AO. Accordingly, the matter is being decided on the basis of material on record and the grounds of appeal are dismissed.” 2.1 Thus, it can be observed that the ld.CIT(A) has not discussed any of the grounds raised by the assessee and averments made by the assessee. On perusal of the Form-35, which has been attached by the assessee along with appeal memo, the grounds of appeal raised before the ld.CIT(A) were as under : “1) The learned AO erred in stating that the purchases made from M/s Anjanya Biotech Pvt. Ltd to be bogus purchases vide its ITA No.45/NAG/2023 M/s.Unijule Life Sciences Ltd., [A] 4 order passed u/s. 153A r.w.s. 143(3) dated 30.03.2016. for the year under consideration. 2) Cash expenses have been added on the basis of document found at the time of search and seizure. 3) Depreciation disallowed. 4) Any other additional point can be taken at any later point of time.” 2.2 Thus, the assessee had made certain averments in the grounds of appeal and in the statement of facts filed before the ld.CIT(A0. Assessee had also relied on certain case laws. However, the ld.CIT(A) has not bothered to discuss any of the averments or specific grounds raised by the assessee and merely dismissed the appeal for non-compliance. 3. The Hon’ble Bombay High Court has held in the case of Pr.CIT(Central) Vs. Premkumar Arjundas Luthra (HUF)(Bombay)/[2017] 297 CTR 614 (Bombay) as under : Quote, “8.From the aforesaid provisions, it is very clear once an appeal is preferred before the CIT(A), then in disposing of the appeal, he is obliged to make such further inquiry that he thinks fit or direct the Assessing Officer to make further inquiry and report the result of the same to him as found in Section 250(4) of the Act. ITA No.45/NAG/2023 M/s.Unijule Life Sciences Ltd., [A] 5 Further Section 250(6) of the Act obliges the CIT(A) to dispose of an appeal in writing after stating the points for determination and then render a decision on each of the points which arise for consideration with reasons in support. Section 251(1)(a) and (b) of the Act provide that while disposing of appeal the CIT(A) would have the power to confirm, reduce, enhance or annul an assessment and/or penalty. Besides Explanation to sub-section (2) of Section 251 of the Act also makes it clear that while considering the appeal, the CIT(A) would be entitled to consider and decide any issue arising in the proceedings before him in appeal filed for its consideration, even if the issue is not raised by the appellant in its appeal before the CIT(A). Thus once an assessee files an appeal under Section 246A of the Act, it is not open to him as of right to withdraw or not press the appeal. In fact the CIT(A) is obliged to dispose of the appeal on merits. In fact with effect from 1st June, 2001 the power of the CIT(A) to set aside the order of the Assessing Officer and restore it to the Assessing Officer for passing a fresh order stands withdrawn. Therefore, it would be noticed that the powers of the CIT(A) is coterminous with that of the Assessing Officer i.e. he can do all that Assessing Officer could do. Therefore just as it is not open to the Assessing Officer to not complete the assessment by allowing the assessee to withdraw its return of income, it is not open to the assessee in appeal to withdraw and/or the CIT(A) to dismiss the appeal on account of non-prosecution of the appeal by the assessee. This is amply clear from the Section 251(1)(a) and (b) and Explanation to Section 251(2) of the Act which requires the CIT(A) to apply his mind to all the issues which arise from the impugned order before him whether or not the same has been raised by the appellant before him. Accordingly, the law does not ITA No.45/NAG/2023 M/s.Unijule Life Sciences Ltd., [A] 6 empower the CIT(A) to dismiss the appeal for non-prosecution as is evident from the provisions of the Act.” Unquote. 4. Thus, the Hon’ble Bombay High Court has categorically held that CIT(A) has to decide the appeal on merit and CIT(A) does not have any power to dismiss appeal for non- prosecution. 5. In view of this, the order of the ld.CIT(A) is set-aside to ld.CIT(A) for denovo adjudication. The ld.CIT(A) shall provide opportunity of hearing to the assessee. 6. Accordingly, appeal of the assessee in ITA No.45/NAG/2023 is allowed for statistical purpose. Order pronounced in the open Court on 28 th March, 2024. Sd/- Sd/- (S.S.GODARA) (DR. DIPAK P. RIPOTE) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; ᳰदनांक / Dated : 28 th March, 2024/ SGR* आदेशकᳱᮧितिलिपअᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The CIT(A), concerned. 4. The Pr. CIT, concerned. 5. िवभागीयᮧितिनिध, आयकर अपीलीय अिधकरण, नागपुर बᱶच, नागपुर/ DR, ITAT, Bench, Nagpur. 6. गाडᭅफ़ाइल / Guard File. ITA No.45/NAG/2023 M/s.Unijule Life Sciences Ltd., [A] 7 आदेशानुसार / BY ORDER, // TRUE COPY // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे/ITAT, Pune.