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2015 (10) TMI 20 - ITAT DELHI

2015 (10) TMI 20 - ITAT DELHI - TMI - Estimation of income - Trading addition made on account of gross profit - CIT(A) directing to apply a G.P. rate of 11% to the sales for working out gross profit - Held that:- Case was fixed for hearing on 24.09.2010 after about one year when the case was earlier fixed on 5.10.2009. The Ld. CIT(A) mentioned that the accountant of the assessee attended the proceeding and requested for adjournment. The said request was rejected by mentioning that the appellate .....

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the case was fixed for hearing by the ld. CIT(A) on 24.09.2010 and by rejecting the request of the assessee for adjournment the impugned order was passed on 27.09.2010.

In our opinion, the ld. CIT(A) has not allowed an appropriate & proper opportunity of being heard to the assessee. It is well settled that nobody should be condemned unheard as per the maxim “Audi Alteram Pertam”. Thus we deem it appropriate to set aside the impugned order and remand the case back to the file of the AO .....

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R Per N. K. Saini, A. M. These cross appeals by the assessee and the department are directed against the order dated 27.09.2010 of the CIT(A), Karnal. 2. In the assessee s appeal following grounds have been raised: 1. That the Ld. CIT(Appeals) has erred in law and facts in increasing the G.P. to 11% from 0.64 against 16.64% as determined by the Assessing Officer. Further he has determined the G.P. on historic basis and nor on actual basis. This is very excessive and arbitrary unjust and any rate .....

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ssessing Officer towards the assessable income are arbitrary, unjust, illegal and at any rate, without prejudice, very excessive and the Ld. C.I.T. (Appeals) has without any judicious application of mind confirmed the same. (a) ₹ 1,21,845/- out of export promotion (Foreign travel) expenses. (b) ₹ 1,73,761/- out of development charges. (c) ₹ 15,000/- out of festival expenses. (d) ₹ 41,205/- out of telephone and fax expenses for alleged personal use of the partners by disal .....

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hat the assessee had itself declared a G.P. rate of 16.64% in the asstt. Year 2004-05 and there were no exceptional circumstances justifying the G.P. rate of 0.64 shown in the year under consideration and books of accounts suffered from defects so as to warrant invoking of section 145(3) of the I.T. Act. 4. The main issue in these appeals revolves around the sustenance/deletion of the trading addition made by the AO on account of gross profit. The assessee has also challenged sustenance of the d .....

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ng aggrieved the assessee carried the matter to the ld. CIT(A) who allowed part relief to the assessee and sustained the additions partly. Now the assessee is in appeal against the sustenance of the additions while the department is in appeal against the relief allowed to the assessee. 7. During the course of hearing the ld. Counsel for the assessee at the very outset stated that the AO as well as the ld. CIT(A) have not allowed proper opportunity of being heard to the assessee. He drew our atte .....

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tunity of being heard and decided the case exparte when the assessee asked for adjournment on 24.09.2010 and passed the order on 27.09.2010, a reference was made to para 1.00 of the impugned order. 8. In his rival submissions, the ld. DR supported the order of the AO and further submitted that ample opportunities of being heard were given by the AO to the assessee and thereafter the assessment order was passed after considering the submissions of the assessee. He further submitted that the ld. C .....

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the submissions of both the parties and carefully gone through the material available on the record. In the present case it is noticed from the entries in the order sheet, copy of which is placed at page no. 1 of the assessee s paper book that the AO asked the assessee on 28.12.2007 to explain how the sales of ₹ 2.18 crore was made when the total opening stock of raw material was ₹ 1.70 crore and himself mentioned that the reply regarding disproportionate sales and purchases was file .....

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order without giving proper opportunity of being heard to the assessee which is clear from the observations made in para 1.00 of the impugned order which read as under :- The appeal proceedings for this year was taken up per this office notice dated 12.05.2008 and the proceedings were fixed for 30.05.2008. None attended on that date. Next opportunity was allowed and the proceedings were fixed for 26.06.2008 per this office notice dated 30.05.2008. CA Rajesh Bahl, Counsel of the appellant attend .....

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fixed for 17.12.2008. CA Rajesh Bahl attended the proceedings on that date and on his request the same was adjourned to 07.01.2009, 27.01.2009, 10.02.2009, on which date none attended. Proceedings were again taken up per this office notice dated 16.03.2009 and the same were fixed for 26.03.2009. Again the same were adjourned to 29.04.2009 on the request of the counsel of the appellant CA Rajesh Bahl. The same was adjourned to 21.05.2009, on which date CA Rajesh Bahl, Counsel of the appellant fil .....

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ed to 31.08.2009, 22.09.2009 and then to 5.10.2009. Fresh opportunity was allowed after joining the undersigned, per this office notice dated 30.08.2010 and the proceedings were fixed for 24.09.2010. Sh. Anil Goel Accountant attended the proceedings on that date and again requested for adjournment. The request of the appellant to further allow the time was rejected per order sheet entry of that date, which is reproduced below: Present sh. Anil Goel Accountant and requested for adjournment on the .....

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