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TMI Blog2018 (4) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel of the assessee were not permitted to be filed. No notice for enhancement of income was given to the assessee. It is well settled that nobody should be condemned unheard as per the maxim “audi alteram partem”. Remand the matter back to the file of the ld. CIT(A) to be adjudicated afresh in accordance with law after providing due and reasonable opportunity of being heard. - ITA No. 4006/Del/2016, ITA No . 2443/Del/2017 - - - Dated:- 1-2-2018 - Sh. N. K. Saini, AM and Ms. Suchitra Kamble, JM Assessee by : Sh. Deepesh Garg, Adv. Revenue by : Smt. Manisha Kumari, Sr. DR ORDER Per N. K. Saini, AM: These cross appeals by the department and the assessee are directed against the order dated 31.03..2016 of ld. CIT(A)-I, Noida. 2. Since, the appeals were heard together so these are being disposed off by this consolidated order for the sake of convenience and brevity. 3. In the departmental appeal, following grounds have been raised: 1. The CIT (Appeals)-I, Noida has erred in law as well as on facts in deleting the addition of ₹ 49,58,486/- without appreciating the facts that Assessing Officer was not satisfied with the correctness or comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e action of Ld. AO in not allowing foreign exchange fluctuation loss of ₹ 5,72,656/- arid has erred in observing that assessee has not produced documentary evidence in support of its claim with regard to foreign exchange. 5. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. AO in not allowing the loss from sale/purchase made with three parties as mentioned in para 5 of the assessment order and that too by observing that assessee has not adduced documentary evidence in this regard. 6. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. AO in not allowing the purchase from M/s Kisan Steel Corporation. 7. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in exercising his jurisdiction u/s 251(1)(a) and making the enhancement of income by making the following additions/disallowances and that too without giving adequate opportunity of being heard in this regard and by recording incorrect facts and findings and without observing the principles of natur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plied, the AO completed the assessment on the basis of the material available on the record and made the various additions on account of unexplained unsecured loans, trade creditors u/s 68 of the Act and the bogus overseas commission paid. The income was assessed at ₹ 15,18,70,100/-. 6. Being aggrieved the assessee carried the matter to the ld. CIT(A) who decided the appeal ex-parte and enhanced the income to ₹ 42,59,38,114/-. The ld. CIT(A) mentioned in the impugned order that whenever the case was fixed for hearing, the various counsels appeared and sought adjournments. The relevant observations of the ld. CIT(A) in paras 2 to 6 of the impugned order read as under: 2. The assessment in this case was completed by the Id. A.O. based upon the special audit which was conducted as per rules u/s. 142(2A) of I.T. Act 1961. The appellant felt aggrieved and thereafter the present appeal was filed. The appeal was filed on 10/07/2012 by M/s. R.RA Tax India on behalf of the appellant and has remained pending since then. The appeal was fixed for 26/12/2012 and necessary notices were issued to the appellant through the authorized representative M/s, R.R.A. Tax India. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase be fixed on or after 05/02/2013. On 05/02/2013 the appellant which is a company having proper compliment of Directors and employees submitted a letter again directly that the bhabhi of C.A. Sh. Vijay Kapoor who was preparing the documents has suffered brain hemorrhage and therefore, they could not produce those documents. Based on this the appellant asked that its case be refixed on or after 15/02/2013. 4. The case was again fixed for 09/04/2013. Another Vakalatnama was filed by the counsels of the appellant M/s. R.R.A. Tax India which was undated but filed in this office along with a letter 09/04/2013 in which the name of C.A. Sh. Vijay Kumar was not even mentioned though his name appeared in the Vakalatnama issued on 06/07/2012. The undated Vakalatnama was therefore not accepted by the C.A. Sh. Vijay Kumar. In any case this time the appellant through its counsel Miss Ankita Arora, C.A. submitted that Sh. Kailash Mittal, Advocate who was supposed to argue the case was not in good health and was not in a position to appear and therefore, an adjournment was sought. Subsequently, the case was fixed for hearing on 16/04/2014 and on that date Sh. Varun Sehgal claiming to be Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is therefore, making inadmissible and unnecessary arguments to digress from the main issue. 7. Now both the parties are in appeal. The department is in appeal on the issues relating to the deletion of additions made by the AO while the assessee is in appeal against the additions sustained/enhancement made and no opportunity being provided by the ld. CIT(A). The ld. Counsel for the assessee at the very outset stated that no notice of hearing was served upon the assessee and that the Director Mr. Sarvottam Sehgal was in the judicial custody when the impugned order was passed without providing a due and reasonable opportunity of being heard. 8. In his rival submissions, ld. DR submitted that the abundant opportunities of being heard were provided by the ld. CIT(A) which were not availed by the assessee, therefore, there was no alternative except to decide the appeal of the assessee on merit on the basis of documents available on the record. 9. We have considered the submissions of both the parties and carefully gone through the material available on the record. In the present case, it is an admitted fact that the appeal of the assessee was decided by the ld. CIT(A) ex-parte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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