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TMI Blog2024 (8) TMI 1006X X X X Extracts X X X X X X X X Extracts X X X X ..... d in dismissing the appeal in limine without adjudicating on merits the grounds of appeal. On Merits 3. That on the facts and circumstances of the case and in law the reassessment order dated 31.03.2016 passed under section 143(3) r.w.s. 147 of the Act is without jurisdiction and bad in law. 4.1. That on the facts and circumstances of the case and in law, the reassessment order being passed beyond the period of limitation prescribed under section 153(2) of the Act is beyond jurisdiction and bad in law. 4.2. That on the facts and circumstances of the case and in law, the proceedings under section 147 of the Act having been initiated without there being "reason to believe' that income of the appellant had escaped assessment, the impugned order is illegal and bad in law. 4.3 That on the facts and circumstances of the case and in law, the reassessment proceedings under section 147 of the Act having being initiated merely on the basis of information received, without independent application of mind by the assessing officer to such information and forming opinion thereof, is illegal and bad in law. 4.4. That on the facts and circumstances of the case and in law, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Without prejudice to the above, the assessing officer erred in not appreciating that out of the aforesaid forfeiture expenditure, an amount of Rs. 1.1 crores was recovered and duly offered to tax in the subsequent assessment year(s). 9. That the assessing officer erred on facts and in law in disallowing an amount of Rs. 40,82,148, being interest on capital raised for business purpose, on the alleged ground that the same was not incurred wholly and exclusively for the purpose of business. 10. That the assessing officer erred on facts and in law in charging interest under section 234B of the Act. 3. Apropos Ground Nos. 1 and 2, the facts are that the assessee, a Private Limited Company, is engaged in the business of providing services in the field of real estate and management consultancy. For the year under consideration, i.e., assessment year 2008-09, the assessee filed return of income declaring income of Rs. 2,99,46,380/-. The return was processed u/s 143(1) of the Income Tax Act. Notice u/s 148 of the Act was issued on 25.03.2015, in response whereof, the assessee filed a copy of the original return of income. The AO completed the re-assessment proceedings, making var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity of being heard and denying inspection of the assessment records, in gross violation of the principles of natural justice; and that the ld. CIT(A) has erred in dismissing the assessee's appeal in limine without adjudicating the merits of the case. Reference has been made to the list of dates and events as furnished before us on behalf of the assessee. 6.1 The ld. DR, on the other hand, has placed strong reliance on the impugned order. 6.2 The Tribunal, it is seen, while remitting the matter to the ld. CIT(A), vide order dated 10.10.2018, passed in ITA No.450/CHD/2018, observed, inter-alia, that rejection of adjournment application, as ordered by the ld. CIT(A) did not automatically result into dismissal of the appeal itself, and that after rejecting the assessee's application for adjournment, the ld. CIT(A) was supposed to decide the appeal on merits, whereas the ld. CIT(A) had dismissed the appeal of the assessee in limine without going into the merits of the case, which action was not sustainable in the eye of the law. The ld. CIT(A) was, as such, directed to decide the appeal of the assessee on merits after giving opportunity of hearing to the assessee. 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter taking inspection of the assessment records; that it remained inexplicable as to what had prevented the assessee not to seek certified copies of the specific documents immediately after inspection of the assessment records; that the only plausible reason that came to his [ld. CIT(A)'s] mind was that the assessee was not interested in pursuing the appeal and therefore, he was somehow delaying the finalization of the appellate proceedings; that this was very much obvious from the non relevance of such documents for the purpose of deciding the appeal; that vide its said request letter dated 09.01.2022, the assessee had sought 155 documents; that he [the ld. CIT(A)] had carefully gone through these documents and had found that these documents appeared to be either already in possession of the assessee, or had no relevance for the purpose of deciding the appeal. 7.2 The ld. CIT(A) enlisted 27 of these documents, where after the ld. CIT(A) observed that the majority of these documents were not relevant for the purpose of the appellate proceedings; that further, the assessee was already having copies of various notices issued u/s 148/143(2)/142(1)/affixture orders, etc., as the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the year 2022; that this was merely a ploy to derail the appellate proceedings; that it was also important that the assessee never asked for copies of any statements in the course of the appellate proceedings; that this implied that either these statements had no or very little relevance for the purpose of the assessment proceedings, or the assessee was in possession of such statements through one of its Directors, i.e., Shri Sukhbir Singh Shergil. The ld. CIT(A) observed that it was thus, abundantly clear that the assessee had sought unnecessary adjournments and had not cooperated in the appellate proceedings; that the assessee had failed to furnish any documentary evidence in support of the various grounds of appeal and the explanations thereto, if any; that the assessee had not abided by the directions issued by the Tribunal in its order dated 10.10.2018; and that it was in the background of these observations, that the appeal was being decided. The ld. CIT(A) thereafter went on to decide the appeal. 7.4 Thus, evidently, the ld. CIT(A) had, even before entering upon the merits of the grounds of appeal raised, had held that the documents, copies of which had been sought by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Form 35 dated 30.04.2016, Statement of Facts, Grounds of appeal and the assessment order appealed against. Reminder letters dated 24.01.2022, 07.02.2022, 21.02.2022 and 26.02.2022 were addressed by the assessee to the DCIT, vide e-mail and Registered Post, again requesting for certified copies of the assessment record. On 11.03.2022, notice u/s 250 of the Act was issued by the NFAC to the assessee, requiring the assessee to submit written submissions on or before 21.03.2022. On 13.03.2022, a reminder letter was again addressed to the DCIT vide e-mail and registered post, once again requesting for certified copies of the assessment record. On 15/16.03.2022, partial records were provided to the assessee. On 18.03.2022, an ex-parte order was passed u/s 250 read with Section 254 of the Act by the NFAC. 7.6 The above stated factual position is patent on record and is not disputed by the Department before us. Copies of all the documents referred to have been placed on record before us by way of the Paper Book filed. 8. The first and foremost, as contended on behalf of the assessee and not disputed on behalf of the Department, the order dated 18.03.2022, passed ex-parte qua the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for the ld. CIT(A), in the absence of material on record leading to such a conclusion, to hold that these documents were in possession of the assessee. Likewise, it is not within the purview of the ld. CIT(A) to conclude that the documents were not relevant for the purposes of the decision of the appeal. It is entirely only for the assessee to consider as to whether the documentary evidence which he seeks to rely on is relevant or not. It is only after having considered the said evidence that the Court [CIT(A)] may decide as to whether it is relevant for the purposes of the decision of the appeal, or not. Shutting out the supply of certified copies of the assessment record to the assessee is nothing other than violation of the principles of natural justice, in that thereby, the assessee though legally entitled to it, has been deprived of documentary evidence available on record of the AO. The adjournments too, are not shown to have been sought as unnecessary adjournments. It is, due to the fact that the certified copies of the assessment record, as sought for by the assessee from the office of the AO, were only partially supplied to the assessee, despite the assessee having given ..... X X X X Extracts X X X X X X X X Extracts X X X X
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