TMI Blog2019 (1) TMI 1125X X X X Extracts X X X X X X X X Extracts X X X X ..... y only theoretical explanation by the assessee and the ld. CIT(A). In our considered opinion, on the facts and circumstances of the case, in the interest of justice, the issue in this appeal needs to be remitted to the file of the A.O - ITA No.66/Mum/2015, Cross Objection No. 118/Mum/2016 - - - Dated:- 12-12-2018 - Shri Shamim Yahya, AM And Shri Ram Lal Negi, JM For the Appellant : Shri L. K. S. Dahiya For the Respondent : Shri Niraj Sheth ORDER PER SHAMIM YAHYA, A. M.: This appeal by the Revenue and cross objection by the assessee arising out of the order of the learned Commissioner of Income Tax (Appeals)-17, Mumbai (ld.CIT(A) for short) dated 13.10.2014 and pertains to the assessment year (A.Y.) 2009-10. 2. The grounds of appeal raised by the Revenue read as under: 1) Whether on the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in reversing the Assessing Officers stand of rejecting the books of accounts without appreciating that the assessee failed to produce necessary details for completion of assessment despite being given sufficient opportunities. 2) Whether on the facts and in the circumstances of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03-10-2011. Therefore, there was no option was left with AO to pass the order u/s 144 of the Act. Vide letter dated 05-10-2011, the approval of the CIT-8, Mumbai was sought for making transfer pricing reference u/s 92CA of the Act in view of the fact that the assessee company had entered into transactions with its Associate Enterprises to the tune of ₹ 2664.67 lakhs. Subsequently, on the receipt of approval from CIT-8, Mumbai transfer pricing reference u/s 92CA of the Act was made to the Addl. CIT(Transfer Pricing) I-(5), Mumbai. Further, notice u/s. 142(1) dated 18- 05-2012 was issued and served on to the assessee fixing the hearing on 12.07.2012. Certain details were filed by the assessee on 12-07-2012 as per the questionnaire dated 18-05-2012. Subsequently another notice u/s.!42(l) of the Act dated 10-08-2012 was issued and served on to the assessee requesting the assessee to appear on 22-08-2012 but again there was no compliance on the specified date from the side of the assessee. Thereafter, show cause notice dated 06.03.2013 for finalizing proceedings exparte u/s 144 of the Act was issued fixing the hearing on 11-03-2013. The response to the same letter was not recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee fails to establish the facts necessary to support his claim for deduction, the claim for deduction is not admissible. Onus lies on the assessee to prove the veracity of the expenses claimed by it. Further, the AO also relied on the decision of Andhra Pradesh High Court in the case of CIT vs. Transport Corporation of India Ltd. 256 ITR 701 and on the case of CIT vs. Imperial Chemical Industries (I) Pvt. Ltd. 74 ITR 17. The computation of the income by the A.O. read as under: Rs. Rs. Total Income (As per Return of Income) 3,83,52,193/- Additions :- Disallowance @ 50% of Operational and administration expenses(Para no.5) 12,09,35,932 Depreciation disallowed @ 50%(Para no.5) 13,98,647 Increase in reserve surplus(Para no.5) 2,21,85,786 14,45,20,365 Total income 18,28,72,558 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presenting its case before the Ld. AO. It is a matter of record that in response to notice under section 142(1) of the Act on May 18, 2012 by the AO requesting appellant to produce various details on or before July 12, 2012, in response to the same, appellant made detailed submission on the appointed date ie July 12, 2012. The details thus were placed on record and thereafter appellant chooses not to attend as according to it no new details were called for. This is a weird logic as attendance is required for seeking several clarifications even in respect of details furnished. Not to attend is a deliberate avoidance of the proceedings and defying the lawful authority. Further, it was stated that the appellant has not received the final show cause u/ 144 while rest of the notices were received by the appellant on the same address is a statement which is to be taken with a pinch of salt. It is highly improbable proposition and appellant on its part also did not adduce any evidence of the same before me, realising this that presumption of law operates in favour of the AO moment he adduces the service of the notice through post. Accordingly, under the circumstances of the facts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtunity was not given to the assessee. Now the ld. CIT(A) without referring to the examination of the books of account, despite his coterminous power has deleted all the disallowance. 16. We are of the considered opinion that neither the assessment can be framed de hors the facts and figures nor the same can be deleted by only theoretical explanation by the assessee and the ld. CIT(A). In our considered opinion, on the facts and circumstances of the case, in the interest of justice, the issue in this appeal needs to be remitted to the file of the A.O. The A.O. is directed to complete the assessment after proper examination of books of account. The assessee is also directed to co-operate with the A.O. There is no reason why the assessee can submit detail record and books and appear before the Transfer Pricing Officer and ignore the notices and request of the A.O. The issue of transfer pricing and domestic assessment needs to be given equal significance by the assessee. 18. In the result, this appeal by the Revenue and cross objection by the assessee stand allowed for statistical purposes. Order pronounced in the open court on 12.12.2018 - - TaxTMI - TMITax - Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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