2019 (3) TMI 1573 - AT - Income Tax

Stay of demand - addition has been made are to the income of the assessee which is almost 16 times of the returned income without invoking the provisions of section 145 - as submitted that assessee has already paid almost 40% of the demand and therefore it deserves the stay for the balance sum - CIT A dismissed the appeal of the assessee for non-prosecution - HELD THAT - The assessee was assessed at INR 27766070/- against the returned income of INR 1589760 by the learned assessing officer by making usual addition of INR 26,176,311/-on 29/12/2016. The assessee preferred an appeal before the learned CIT A who dismissed the appeal of the assessee as on 7 occasions the notices were issued to the assessee but he did not appear on he requested for adjournment. Therefore the assessee has preferred an appeal before us. On perusal of the conduct of the assessee before the learned CIT A wherein on 7 occasions he did not remain present before him in spite of the assessee paying almost 40% of the tax demand he does not deserve the stay. Hence to petition filed by the assessee is dismissed. Looking at the facts and circumstances of the case it is apparent that the learned CIT A has dismissed the appeal of the assessee for non-prosecution but not on the merits. Therefore it is imperative that the issue has to be decided on the merits of the case even if the assessee does not remain present before him. We have carefully considered the rival contention as well as perused the orders of the lower authorities. As the learned CIT A has not decided the issue on the merits of the case we set aside the whole issue back to the file of the learned CIT A with a direction to the assessee to remain present before him on 14/5/2019 and is make his submission before him. The learned CIT A is also directed to consider the submission of the assessee and decide the issue afresh on the merits of the case. - Appeal of the assessee is allowed for the statistical purposes.

Summary

Issues:
Stay petition for outstanding demand in assessment year 2014-15.

Analysis:
The assessee filed a stay petition for an outstanding demand of INR 7333864 plus interest, making the total demand INR 11959980 for assessment year 2014-15. The income tax department had already recovered INR 4626116 from the assessee's bank account. The addition of INR 24576311 was made on account of trade creditors under section 68 of the Income Tax Act during assessment u/s 143(3), which was confirmed by the CIT-A. The authorized representative argued that the addition was 16 times the returned income without invoking section 145, and as the assessee had paid 40% of the demand, a stay should be granted. However, the departmental representative contended that the assessee, a non-cooperative party, did not cooperate in the assessment and appellate proceedings, thus not deserving a stay.

The Tribunal noted that the assessing officer assessed the assessee at INR 27766070 against the returned income of INR 1589760 by making an addition of INR 26176311. The CIT-A dismissed the appeal due to the assessee's repeated non-appearance despite paying 40% of the tax demand. The Tribunal observed the dismissal was for non-prosecution, not on merits, and thus decided to set aside the matter to allow the assessee to represent the case before the CIT-A. Consequently, the Tribunal directed the assessee to appear before the CIT-A on a specified date for submissions, emphasizing a fresh consideration of the issue on its merits.

In response to the requests from both parties, the Tribunal set aside the issue back to the CIT-A for a fresh decision on the merits of the case, directing the assessee to appear before the CIT-A for submissions. The CIT-A was instructed to consider the submissions and decide the issue afresh based on the merits of the case. The Tribunal allowed the assessee's appeal for statistical purposes, and the stay petition was disposed of accordingly.