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TMI Blog2012 (11) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... report from the AO in the light of his findings in the assessment order, even while being fully aware that assessment had been completed u/s 144 - set aside the order of the CIT(A) in order to enable him to decide the matter afresh - in favour of revenue by way of remand. - ITA no.2543/Del./2012 - - - Dated:- 26-7-2012 - SHRI I.C. SUDHIR SHRI A.N. PAHUJA, JJ. Respondent by Shri Satpal Singh, DR O R D E R A.N.Pahuja:- This appeal filed on 25th May, 2012 by the Revenue against an order dated 21.03.2012 of the ld. CIT(A)-XVII, New Delhi, raises the following grounds :- i) On the facts and circumstances of the case, the CIT(A) has erred in law as well as on facts in restricting the disallowances to Rs.1,12,627/-. ii) On the facts and circumstances of the case, the CIT(A) erred in accepting self serving documents not corroborated by cross examination or produced before the Assessing Officer, in contravention of rule 46A. iii) Set aside the order of the CIT(A) and restore the matter back to the Assessing Officer to re examine fresh evidences in a holistic manner and as per law. The appellant craves the right to add any other ground of appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jha, CA attended.Asked to furnish PoA. Sought adj. case adj. to 16.11.2009. 16.11.2009 Some of the required details filed by the assessee. 4.1 There is no mention in the order sheet regarding the issue of show cause notice issued subsequently or the completion of assessment on 22.12.2009. The next entry in the order sheet in page No.2 is dated 29.8.2011 which is regarding the penalty proceeding u/s 271(1)(c) kept in abeyance and there is no other mention in the order sheet between 16.11.2009 and 29.8.2011. There is no evidence in the assessment records regarding the service of show cause notice dt. 15.12.2009. The assessment records contained the appellant s AR s letter dated 16.11.2009 which clearly shows that the details required as per 142 (1) notice dated 14.9.2009 was filed. In view of the above, it appears that the appellant s AR s submission is correct that the show cause notice was never received by the appellant and they have responded to the notice u/s 142(1). Therefore, exparte assessment u/s 144 of the Income-tax Act, 1961 done on 22.12.2009 appears to be improper. 4.2 On verifying the P L account available in the assessment records, it is seen that the Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of the Assessing Officer is hereby restricted to Rs.1,12,627/- being 5% of Rs.22,52,539/-. As a result, the appellant gets a relief of Rs.9,45,651/-. Thus, this ground of appeal is treated as partly allowed. 5. The Revenue is now in appeal before us against the aforesaid findings of the ld. CIT(A). The ld. DR contended that the learned CIT(A) reduced the disallowance without allowing any opportunity to the AO despite the fact that the assessment in this case was completed u/s 144 of the Act and the assessee never produced relevant books of accounts and bills/vouchers. The ld. DR added that there is nothing to suggest as to whether or not ld. CIT(A) examined the books of accounts nor allowed any opportunity to the AO to examine the details and documents filed by the assessee before him, in violation of Rule 46A of I.T. Rules, 1962. 6. We have heard the learned DR and gone through the facts of the case. As is apparent from the aforesaid facts narrated in the assessment order, none appeared before the AO despite issuance of various notices, resulting in completion of assessment u/s 144 of the Act. In the absence of books of account and relevant bills and vouchers, the AO dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fered and the materials available, culminating in an order which discloses reasons for the decision sufficient to show that the mind of the authority has been applied relevantly and rationally and without reliance on facts not furnished to the affected party. Natural justice, I must warn, cannot be perverted into anything unnatural or unjust and cannot therefore be treated as a set of dogmatic prescriptions applicable without reference to the circumstances of the case. The question merely is, in all conscience have you been fair in dealing with that man ? If you have been arbitrary, absent-minded, unreasonable or unspeaking, you cannot deny that there has been no administrative fair play. " 6.1. As is apparent from the aforesaid facts narrated in the impugned order, the assessee did not appear before the AO nor produced the relevant books of accounts or bi lls/vouchers before the AO or even before the ld. CIT(A). Even before us none appeared on behalf of the assessee despite service of the not ice. There is nothing to suggest as to whether or not the assessee prefer red any appeal against the findings of the ld. CIT(A) . . We are of the opinion that under the scheme of s. 144 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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