9911796707
TMI Blog2022 (10) TMI 1232X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1961. The reply of the Director, was received by the Assessing officer by speed post on 9.03.2016. Thus, the contention of the Appellant has no legs to stand on, and is, therefore, unacceptable. Violation of principle of natural justice - As assessment order emanates that, the assessee was well informed the grievance for rebuttal through notices u/s 148, 142(1) and 144 of the Act and in response thereto the director/Appellant preferred a written submission, considering the same in the light of evidential material and keeping in mind that the assessee has failed to ITR till that date, the assessment proceedings were concluded. Whereas from the records it also apparent that, the Ld. FAA in an appellate proceedings before him granted a reasonable opportunity to the assessee company to support of its legal as well meritare grounds raised and considering the representation of Ld. AR put forth before him through written submission, the addition made u/s 68 of the Act was confirmed, thus ex-facie contention of the appellant fails, resultantly the ground number 2. Inapplicability of provisions of section 68 - Admittedly, neither during the assessment proceedings, nor in the course of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -5), Pune [for short CIT(A) ] dt. 09/10/2017 passed u/s 250 of the Income-tax Act, 1961 [for short the Act ], which ascended out of assessment order dt. 30/03/2016 passed u/s 143(3) r.w.s. 144 by the Asst. Commissioner of Income Tax, Circle 13, Pune [for short AO ] for assessment year [for short AY ] 2010-11. 2. When case was called up at physical hearing, none represented the assessee, mindful to the conduct of the appellant showing no appearance on four occasions and found availed as many as five adjournments for submission of paper book, in the interest of justice we proceeded to adjudicate the matters following rule 24 of the ITAT-Rules, which empowers the Tribunal to decide the appeal ex parte on merits where the appellant does not appear in person or through an authorised representative and the same is done placing on record a no-objection from the respondent revenue. It is needless to mention that, the proviso to the said rule carves out an exception empowering the Tribunal to recall the ex parte order, if the appellant appears afterwards and satisfies placing evidential material before the Tribunal to the effect that, there was sufficient cause for its non appearance when t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authority [for short FAA ] and was represented by authorised representative of the Company [for short AR ], the Ld. CIT(A) however, in the absence of any cogent material in support of claim of the appellant, dismissed the appeal reverberating the views of the Ld. AO. Consequently, the appellant aggrieved by the action of tax authorities below [for short TAB ] is in appeal before the Tribunal with grounds of appeal laid at para 3 hereinbefore. 4.3 It shall be apropos to state that, the present appeal comes for a consideration with five substantive grounds as; a. Reopening as bad in law b. Violation of principle of natural justice c. Inapplicability of provisions of section 68 and d. Prayer restricting addition to Peak Credit e. Levy of mandatory interest 5. In the course of physical hearing the learned departmental representative [for short DR ] taken us through the relevant pages of paper book submitted by the appellant and the orders of Ld. TAB and argued that, the appellant did not co-operative to bring the full facts of the case, eventually it constrained the Ld. AO to complete the assessment to the best of his judgement u/s 144 of the Act on the basis of bank statement obtain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, unacceptable. This Additional Ground of Appeal is accordingly dismissed. 7.2 Violation of principle of natural justice It is to be noted that, the prime objective of principles of audi alteram partem are that they aid to avert miscarriage of justice by safeguarding rights of an aggrieved, and any order passed in violation thereof deserves cancellation. In the present case however, from the para 1 and 3 of assessment order (placed at page 1 2) it emanates that, the assessee was well informed the grievance for rebuttal through notices u/s 148, 142(1) and 144 of the Act and in response thereto the director Ms Disha Deven Malviya preferred a written submission, considering the same in the light of evidential material and keeping in mind that the assessee has failed to ITR till that date, the assessment proceedings were concluded. Whereas from the records it also apparent that, the Ld. FAA in an appellate proceedings before him granted a reasonable opportunity to the assessee company to support of its legal as well meritare grounds raised and considering the representation of Ld. AR put forth before him through written submission, the addition made u/s 68 of the Act was confirme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly the claim of the appellant fails and the ground number 3 of the present appeal. 7.6 Prayer restricting addition to Peak Credit Through the ground number 4 of the present appeal the assessee company prays to restrict the addition made u/s 68 of the Act to the ceiling of peak credits as against taxing the total credits entered into bank account. It shall be suffice to state that, in the absence of ITR, books and evidential material to support the claim of the appellant to restrict the addition to peak credit finds no merits. We are heedful to note that, the appellant was accorded reasonable and sufficient opportunity at both the stages before Ld. TAB; however same were neglected and remained unexploited by the assessee company. 7.7 The principle of peak credit theory stems on the fundamental premise that the money deposited and/or withdrawn from the assessee's bank account belongs to the appellant/assessee or in respect of which ownership vest in the appellant/assessee. So, in other words, ownership of the funds is the sine qua non for invoking the principle of peak credit and this particular principle of peak credit theory has been reiterated by the Hon'ble Allahabad High ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
