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TMI Blog2014 (11) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... d the miscellaneous application on 5 August 2014. On these grounds, since the appellant was bona fide pursuing his miscellaneous application before the Tribunal, sufficient ground for condonation of delay in filing the appeal has been made out. The delay is, hence, condoned. The appeal by the assessee arises from an order of the Income Tax Appellate Tribunal dated 27 September 2013. The assessment year to which the appeal relates is AY 2008-09. The assessee has raised the following questions of law: "(i) Whether on the facts and circumstances of the case the ITAT is justified in reversing the order of the CIT (A) and restoring the order of A.O. on the ground that CIT (A) has without verifying books of accounts or without admitting additio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 2010, he recorded that there was no compliance. Eventually, on 22 December 2010, an order of assessment was passed under Section 143 (3) of the Act and penalty proceedings were directed to be initiated. The assessee filed an appeal before the Commissioner (Appeals). During the course of the hearing of the appeal, the Commissioner (Appeals) called for a remand report from the Assessing Officer. The Assessing Officer submitted his remand report on 7 May 2012 and specifically stated that two additions, which have been made by him, may be deleted respectively in the amount of Rs. 50,000/- and Rs. 2,10,920.00. The order-sheet of the Assessing Officer records that on 1 May 2012, he had issued a letter to the assessee to produce his books of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for non-production of the books before the assessing officer, CIT (A) ought not to have proceeded further and call for a remand report that too only on the basis of assessee's written submissions. Thus, the relief has been given without giving opportunity to assessing officer. CIT (A)'s findings are unsustainable and contrary to record." Again the Tribunal observed as follows: "From the grounds of appeal filed by the assessee before CIT (A) no grievance has been made about the assessment being without books or record which implies that assessee admitted the position about the assessment being without books. Similarly, neither there is any application for admission of additional evidence, nor it appears that the accounts books w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Revenue, who submits that the assessee had failed to co-operate with the Assessing Officer and he was, hence, justified in making a reasonable assessment on the basis of the material available on the record. Moreover, it was urged on behalf of the Revenue that in the grounds of appeal before the Commissioner (Appeals), no ground was taken in relation to the assessment having been made without books or record. We have perused the record of the case with the assistance of the learned counsel appearing on behalf of the assessee and the Revenue. Basically, the extract from the decision of the Tribunal would indicate that the Tribunal found fault with the Commissioner (Appeals) for not having either verified the books and for not having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner (Appeals) was not justified in allowing the appeal filed by the assessee straightaway without examining the books of account and without furnishing a due and proper opportunity to the Assessing Officer. As we have already observed, there is no reason for the Court, on the basis of the material available on the record, to take a different view since it is clear that before the Assessing Officer sufficient adjournments had already been allowed from time to time. However, in our view, the proper course of action would have been for the Tribunal to have restored the proceedings back to the file of the Commissioner (Appeals) for disposal of the appeal filed by the assessee, once the Tribunal had found fault with the procedure which was f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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