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TMI Blog2019 (4) TMI 1514X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 - ITAT JAIPUR] shall be having a direct bearing over the present appeals. Hon ble ITAT has directed the AO to consider the claim of the assessee on merits as regards allowability thereof u/s. 40A(9), sec. 37(1), diversion of income by overriding title. I also found that recently the AO i.e ITO, Ward-1, Beawar, in there- assessment order passed u/s. 143(3) r/w/s 254 263 of the Act, pursuant to the direction of the Hon ble ITAT, has again repeated the disallowances. Since the facts and circumstances in all the other years under consideration are same, therefore, these are also restored back to the file of the CIT(A) with the same direction. The assessee is also directed to appear before the CIT(A) within a period of 60 days from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and NP of ₹ 24,65,052/- on total turnover of ₹ 14,65,59,007/-. The transactions are certified by the Local Audit and assessed by Sales Tax Authorities as per VAT annual return. During the assessment proceedings it was noticed that a sum of ₹ 6,16,263/- has been transferred to Reserve fund and ₹ 24,650/- to Education Fund. When asked, the assessee vide letter dated 16.04.2015 submitted that as per bye laws of society, it is obligatory to create reserve fund of 25% out of its profit to meet out the losses and the same should be allowed u/s. 40A(9) of the I.T. Act, 1961. However, dissatisfied with the reply, the AO finally disallowed the General reserve and Education reserve totaling to ₹ 6,40,913/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not send any notice giving final opportunity nor any other communication was made to the assessee and of the fact of non-compliance. The ld. AR also contended that assessee was never in receipt of any such notice. Thus, no real and adequate opportunity of being heard was ever provided by the ld.CIT(A). Therefore, deciding the appeal ex-parte, this way, was a violation of the principles of natural justice. 7. On the other hand, the ld. DR supported the orders passed by the lower authorities. 8. I have considered the rival contentions and carefully gone through the orders of the authorities below and found that non-appearance of the ld. AR of the assessee before the ld. CIT(A) was on reasonable ground. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the reassessment order passed by the then AO u/s. 143(3)/263 in A.Y 2012-13, hence the said order of the Hon ble ITAT shall be having a direct bearing over the present appeals. 10. After going through the said order of the Tribunal ( in assessee s own case), I found that the Hon ble ITAT has now directed the AO to consider the claim of the assessee on merits as regards allowability thereof u/s. 40A(9), sec. 37(1), diversion of income by overriding title. 11. I also found that recently the AO i.e ITO, Ward-1, Beawar, in there- assessment order passed u/s. 143(3) r/w/s 254 263 of the Act, pursuant to the direction of the Hon ble ITAT, has again repeated the disallowances i.e addition/disallowance made on acc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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