Nakshatra Promoters Developers , New ... vs Assessee

By the present appeal filed by the assessee, the correctness of the order dated 17.09.2012 by the CIT(A), Ghaziabad pertaining to 2009-10 assessment year has been assailed. Though various grounds have been raised by the assessee, however the parties were heard only in respect to natural justice as canvassed vide Ground No.-1 which reads as under:-

1. "That the order passed u/s 250 of the I.T. Act is bad in law, contrary to law & facts and against the principles of natural justice."

2. The Ld. AR appearing on behalf of the assessee submitted that the assessment has been concluded u/s 144 for want of representation on behalf of the assessee. It was submitted that the assessee firm had two partners and on account of their health problems, the assessee remained unrepresented. These submissions, it was pointed out are found referred to at page 18 para 5.2.1 in the impugned order, accordingly it was his humble prayer that admittedly the facts and evidences are not on record and incase the prayer of the assessee is not accepted then the assessee will necessarily need to argue I.T.A .No.-5845/Del/2012

for admission of fresh evidence as the prayer to file the same has also been rejected by the CIT(A). The decision has been passed devoid of facts as admittedly the assessee's evidence has never been taken on record. In these circumstances, it was his submission that exercising the discretion, the issue may be restored back to the file of the AO for grant of a reasonable opportunity. It was also his submission that he would undertake that the assessee fully co-operates in the proceedings where the orders admittedly have been passed on the basis of information on which the assessee has never been heard.

3. The Ld. CIT DR considering the peculiar facts and circumstances of the case submitted that in the eventuality that the assessee is being permitted to produce the fresh evidence at the Tribunal's stage then the issue should be restored to the AO and not to the CIT(A) as any fresh evidence admitted at this stage qua the additions sustained the CIT(A) will need to have a Remand Report from the AO thereon. It was also his submission that incase the discretion is exercised in assessee's favour, taking a humane approach, the issue may be restored only on the oral undertaking of the Ld. AR that the assessee will appear before the authority and co-operate in the proceedings.

4. We have heard the rival submissions and perused the material available on record. The record shows that the assessee who is a partner firm returned an income of Rs.2,36,444/-. The case was selected for scrutiny through CASS and the assessment after making efforts to serve notice upon the assessee was concluded u/s 144 of the Act at a figure of Rs.25,15,430/- as a result of addition u/s 68 on account of unexplained cash credits amounting to Rs.16,75,425/- and estimation of profit apart from that addition of Rs.6,03,556/- was also made, in view of the fact that the relevant books of accounts, bills and vouchers were not made available for verification.

5. Aggrieved by this, the assessee filed an appeal before the CIT(A).

Assailing the order being an ex-parte order. A perusal of the order under challenge specific page 8 shows that it was stated that whereas one of the partners was about 70 years and had retired in 2003 as Executive Engineer in CPWD; the other partner was aged 55 years. Affidavits alongwith medical papers were filed pleading health issues for both of them. Apart from that

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detailed explanation addressing the unsecured loans alongwith evidence in support of the claim alongwith the profit ratio for the last three assessment years assailing the addition on estimate basis was sought to be filed. It is seen that these evidences were not accepted in view of the fact that in the affidavits filed by the two partners namely Sh. Naresh Kumar Mehta and Sh.Mohd. Iqbal the averment that they were medically not fit were found by the CIT(A) to be general in nature. The doctor's prescription relied upon referred to in para 5.2.2 were found to be not pointing any specific medical reasons. Accordingly, in view thereof, the fresh evidences were not admitted. In the afore-mentioned peculiar facts and circumstances of the case and considering the arguments of the parties before the Bench, we deem it appropriate to set aside the impugned order and restore the issue back to the file of the AO to pass a speaking order in accordance with law. The opportunity so provided in good faith to the assessee, it is hoped is not abused and is gainfully utilized by ensuring full and proper compliance before the AO. The Ld. AR has given an oral undertaking that the assessee shall participate in the proceedings. We add in the eventuality, the assessee does not participate in the proceedings AO would be at liberty to pass an order on the basis of material available on record as the liberty so granted should not be abused. Liberty to file fresh evidence before the AO in support of its claim is granted to the assessee.

6. In the result, the appeal of the assessee is allowed.

The order is pronounced in the open court on 19th of June, 2015.

Sd/- Sd/- (N.K.SAINI) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER

Dated:19/06/2015 *Amit Kumar* Copy forwarded to:

1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI

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