Ram Construction Co., Surat vs Assessee

This appeal is filed by the assessee against the ex-parte order of Ld. CIT(A)-II, Surat dated 10-11-2010 on the following grounds:-

I.T.A No. 03/Ahd/2011 A.Y. 2007-08 Page No 2 M/s. Ram Construction Co. vs. DCIT "1. On the facts and in the circumstances of the case as well as law on the subject, the learned commissioner of the Income Tax (Appeals) has erred in confirming the action of the assessing officer in making addition of Rs 3,74,086/- on account of non showing of closing stock at the end of the year.

2. On the facts and in the circumstances of the case as well as law on the subject, the learned commissioner of the Income Tax (Appeals) has erred in confirming the action of the assessing officer in making addition of Rs 47,15,350/- out of total carting expenses of Rs.

1,88,61,482/- as unexplained expenses i.e. (25% of 1,88,61,402/- total carting expense).

3. On the facts and in the circumstances of the case as well as law on the subject, the learned commissioner of the Income Tax (Appeals) has erred in confirming the action of the assessing officer in making addition of Rs 42,99,505/- as unverifiable labour expenses out of total labour expenses of Rs. 1,71,98,021/- as unjustified labour expenses i.e. (25% of Rs. 1,71,98,021/- total labour expense)."

2. The main grievance of the assessee is against the ex- parte order passed by CIT(A). Ld. Authorized Representative submitted that matter was adjourned at the request of assessee for few dates and it was fixed on 3rd November, 2010 and the same was decided ex-parte since none appeared on behalf of assessee. In this regard, stand of assessee has been that due to Diwali festival his office was not opened so due to communication gap he could not attend the proceedings and request to set aside ex-parte order. On the other hand, Ld. DR I.T.A No. 03/Ahd/2011 A.Y. 2007-08 Page No 3 M/s. Ram Construction Co. vs. DCIT supported the order of CIT(A) on preliminary issue as well as main issue.

3. After going through rival submission and material on record, we find that matter was adjourned on certain dates and finally it was adjourned to 3rd November, 2010 and ex- parte order was passed by CIT(A) because none on behalf of assessee appeared. We cannot encourage the apathy towards proceedings before authorities below. However, at the time due opportunity of hearing is also essential for justice. So, in the interest of justice, order of CIT(A) is set aside subject to payment of cost of Rs. 20,000/- to be deposited in legal aid of Gujarat High Court. The matter is restored to CIT(A) with direction to decide the same as per fact and law after providing due opportunity to the assessee.

4. Since we are restoring the matter to CIT(A) on preliminary issue, we are refraining to comment on merit of the issue at hand.

5. As a result, appeal filed by assessee is allowed for statistical purpose as indicated above.

Order pronounced in open court on the date mentioned hereinabove at caption page i.e. 30/04/2015

Sd/- Sd/-

(ANIL CHATURVEDI) (SHAILENDRA KR. YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad : Dated 30/04/2015 I.T.A No. 03/Ahd/2011 A.Y. 2007-08 Page No 4 M/s. Ram Construction Co. vs. DCIT ak आदे श क ूितिल प अमे षत / Copy of Order Forwarded to:-

1. Assessee

2. Revenue

3. Concerned CIT

4. CIT (A)

5. DR, ITAT, Ahmedabad

6. Guard file.

By order/आदे श से,

उप/सहायक पंजीकार आयकर अपीलीय अिधकरण, अहमदाबाद