TMI Blog2019 (1) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 - - - Dated:- 20-11-2018 - SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI K. NARASIMHA CHARY, JUDICIAL MEMBER For The Assessee : Shri Rohit Jain, Advocate; and Shri Asnshul Sachar And Karan Jain, CAs For The Revenue : Shri D.K. Mishra, Sr.DR And Smt. Naina Soin Kopil, Sr. DR ORDER PER R.K. PANDA, AM: These are cross appeals - the first one is filed by the Revenue and the second one is filed by the assessee and are directed against the order dated 5th September, 2014 of the CIT(A)-8, New Delhi relating to assessment year 2010-11. 2. The facts, in brief, are that the assessee is a company and is engaged in the business of transportation of costal goods through waterways and cargo handling services, etc. It filed its return of income on 28th September, 2010 declaring a loss of ₹ 120,53,13,352/-. The case was selected for scrutiny and statutory notices u/s 143(2) and 142(1) were issued and duly served upon the assessee asking for clarification on various issues. A perusal of para 3 of the assessment order shows that despite repeated opportunities granted by the AO, the assessee either sought adjournment or filed negligible details for which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nditure made by the A.O. for unsubstantial expenses, to ₹ 7,76,39,843/- without any cogent basis despite himself coming to the conclusion in the appellate proceedings that (i) the GP ratio and NP ratio show erratic ratio of ratio analysis (ii) possibility of excessive claim cannot be ruled out in Operational Expenses and Administrative Other Expenses (iii) the question of self made vouchers and inflated expenses cannot be ruled out in the way the books are maintained? 5. Whether on the facts and circumstances of the case in law, the Ld. CIT(A) has erred in not rejecting the books of accounts of the assessee despite finding aforementioned defects in the books of accounts of the assessee produced for the first time during the appellate proceedings? 6. That the order of the Ld. CIT (A) is erroneous and is not tenable on facts and inlaw. 7. That the grounds of appeal are without prejudice to each other. 8. That the appellant carves leave to add, alter, amend or forego any ground(s) of appeal raised above at the time of hearing. ITA No.5810/Del/2014 On the facts and circumstances of the case, the Ld. CIT (A) is not justified in susta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iii) ACIT vs. Mohar Singh, 16 taxmann.com 37, 49 SOT 129 (Raj.); iv) E-4 Entertainment Pvt. Ltd., ITA No.4491/Del/2010, A.Y. 2007-08; v) CIT vs. Ranjit Kumar Choudhary, 288 ITR 179 (Gau.); vi) Haji Lal Mohd Biri Works vs. CIT (2005) 275 ITR 496 (All); vii) ACIT vs. Nirula Handicraft Bazar (P) Ltd., ITA No.3886 (Delhi), Order dated 12.10.2012; viii) ITO 24(2) vs. Kuber Chand Sharma, ITA No.3982/Del/2009 (ITAT, Delhi); ix) ITO 31(1), New Delhi vs. Bhai Manjit Singh (ITA No.1807/Del/2010). He accordingly submitted that the order of the ld.CIT(A) be reversed and that of the Assessing Officer be restored. 5. The ld. counsel for the assessee, on the other hand, strongly supported the order of the CIT(A). He submitted that because of the non-appearance of the counsel of the assessee, the case remained unrepresented before the Assessing Officer. Referring to page 2 of the assessment order, he submitted that the final show cause notice was issued on 01.01.2013 fixing the case for hearing on 8th January, 2012 and the Assessing Officer passed the order on 9th January, 2013. Thus, adequate opportunity was not granted to the assessee and the assessment was not getting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 05.09.2012 fixing the case for hearing on 14.09.2012. On 14.09.2012 none attended nor any adjournment was sought. After that AR of the assessee company was contacted telephonically many times but he failed to appear before the undersigned. Finally AR of the assessee company Shri Rajnsh Aggarwal appeared before the undersigned on 05.12.2012. On this date various queries were given to him and the case was adjourned for 10.12.2012. But on this date also nobody appeared. After that telephonically many times efforts were made to contact to AR of the company but no response was received. Finally a show cause notice was issued on 01.01.2013 fixing the case for hearing on 08.01.2013. But till now nobody attended nor any adjournment is sought till date in response to the notices so issued. In view of the facts and in the circumstances of the case I am left with no alternative but to complete the assessment ex-parte u/s 144 of the Income Tax Act, on the basis of material available on record. 8. The ld. counsel for the assessee also fairly conceded that there was no compliance before the Assessing Officer due to non-appearance of the counsel for the assessee. We find the assessee filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder clause (a) of sub-section (1) of section 251 or the imposition of penalty under section 271.] 9. A perusal of the above provision shows that the assessee does not fulfill any of the conditions laid down in the said provision. Further, a perusal of the order of the CIT(A) also shows that he has not categorically dealt with the objections raised by the Assessing Officer. The various decisions relied on by the ld. counsel for the assessee are distinguishable and not applicable to the facts of the present case. Every case depends on its own set of facts and the ratio in one decision cannot be applied blindly that in each and every case where the Assessing Officer has passed an order u/s 144 due to deliberate non-compliance by the assessee, the CIT(A) can admit additional evidence despite objections by the Assessing Officer and grant substantial relief running into crores. In the present case, the assessee has filed a paper book containing more than 1900 pages and it is also an admitted fact that the Assessing Officer has not examined a single page out of the paper book so filed before us which was filed before the CIT(A). Since the order of the CIT(A) in the instant case is a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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