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M/s Micro Max Technologies Pvt. Ltd.,P-31, West Patel Nagar, New Delhi VS. ITO, Ward 6(1), New Delhi
October, 17th 2013
                                                            ITA NO. 5838/Del/2012


                IN THE INCOME TAX APPELLATE TRIBUNAL
                      DELHI BENCH "E", NEW DELHI
           BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER
                                    AND
                    SHRI C.M. GARG, JUDICIAL MEMBER


                           I.T.A. No. 5838/Del/2012

                                A.Y. : 2003-04

M/s Micro Max                         VS.              ITO, Ward 6(1),
Technologies Pvt. Ltd.,                                New Delhi
P-31, West Patel
Nagar, New Delhi
 (PAN: AAACM7070M)
(APPELLANT)                                            (RESPONDENT)

            Assessee by               :     Sh. Manoj Kumar, CA
           Department by              :     Mrs. Renuka Jain Gupta, Sr. D.R.


                                     ORDER
PER SHAMIM YAHYA: AM
      This appeal by the Assessee is directed against the order of
the Ld. Commissioner of Income Tax (Appeals)-IX, New Delhi dated
29.8.2012 pertaining to assessment year 2003-04.

2.    The    grounds raised read as under:-

      1.          Looking into the facts and circumstances of the
                  case and in law, the addition of Rs. 2,04,000/- under
                  the head unexplained cash credit u/s. 68 is not
                  tenable in law and Ld. CIT(A) has erred in sustaining
                  the addition on untenable and illegal grounds.
                  Hence, the addition made, as such, may kindly be
                  deleted.




                                      1
                                              ITA NO. 5838/Del/2012


2.   Looking into the facts and circumstances of the
     case and in law, the Ld. CIT(A) has erred in not
     providing the sufficient opportunity to the assessee
     and in deciding the case ex-parte.            Hence, the
     order, as such, may kindly be set aside and sent
     back to the file of the Ld. CIT(A) for fresh disposal.

3.   That under the facts and circumstances of the case
     and in law, the Ld. AO           has erred in invoking
     section 147 simply on the basis of information and
     without   having       any   reason    to   believe      and
     application of his mind that the income has escaped
     assessment. Hence, the order passed on the basis
     of such a defective notice is in fructuous and
     without jurisdiction and liable to be quashed and
     demand may be vacated. The Ld. CIT(A) has erred
     in sustaining such assessment order on illegal and
     untenable grounds. Hence, the assessment, as
     such, for lack of jurisdiction under section 147 may
     be quashed.




4.   The under the facts and circumstances of the case
     and in law, the AO has erred in law as the statutory
     requirement of section 151(2) regarding satisfaction
     by the Jt. CIT is absent in absent in the file and
     instead the approval of CIT-II, Delhi was taken. The
     Ld.   CIT(A)-IX   has    erred   in   sustaining       such
     assessment order on illegal and untenable grounds.
     Hence, the assessment as such may be quashed.

5.   That under the facts and circumstances of the case
     and in law, the Ld. AO has erred in making addition


                        2
                                                              ITA NO. 5838/Del/2012


                   of    Rs.   2,04,000/-     u/s.   68    which   deals     with
                   unexplained cash credits on untenable and illegal
                   grounds. The CIT(A) also has erred in sustaining the
                   addition without providing sufficient opportunity to
                   the assessee. Hence, the addition u/s. 68 is illegal
                   and hence liable to be vacated.

     6.            That it     is prayed that appellant assessee may be
                   permitted to add, amend, delete or substitute any
                   grounds of appeal on or before             of the date of
                   hearing.

3.   In this case assessment was framed u/s 147 of the I.T. Act. In
the assessment AO made addition on account of unexplained cash
credit amounting to Rs. 2.04 lacs.           The same consisted of bogus
accommodation       entry      of   Rs. 2    lacs    and    plus   commission
@ 2% thereon amounting to Rs. 4000/-.

4.   Upon assessee's appeal Ld. CIT(A) confirmed the AO's action.

5.   Against the above order the Assessee is in appeal before us.

6.   At the outset, Ld. Counsel of the assessee submitted that in
this case the Ld. CIT(A)       has passed an exparte order. He pleaded
that sufficient opportunity has not been given to the assessee. He
submitted that appellate order was passed by the Ld. CIT(A) in the
Month     of   August,    2012      by   giving   the   assessee   very     short
opportunity. In that period, Ld. Counsel of the assessee contended
that assessee's counsel was busy in time barring matter relating to
Income Tax as well as Companies Act cases. Hence, Ld. Counsel of
the assessee prayed that the matter may be remitted to the file of
the Ld. CIT(A) for consideration              after allowing the assessee
adequate opportunity of being heard.


                                         3
                                                        ITA NO. 5838/Del/2012


6.1   Ld. Departmental Representative on the other hand submitted
that assessee has not cooperated before the Ld. CIT(A).                 She
submitted that if the matter is being remitted to the file of the Ld.
CIT(A), the assessee should be directed to cooperate in the hearing.




7.    We have carefully considered the submissions and perused the
records. On the facts and circumstances of the case, in our
considered opinion, interest of justice will be served if the matter is
remitted to the file of the Ld. CIT(A).     Ld. CIT(A) is directed to
consider the issue afresh, after giving the assessee adequate
opportunity of being heard. We hold and direct accordingly.

8.    In the result, the appeal filed by the Assessee is allowed for
statistical purposes.

      Order pronounced in the Open Court on 10/10/2013, upon
conclusion of hearing.

      Sd/-                                                Sd/-

       GARG]
 [C.M. GARG]                                     [SHAMIM YAHYA]
JUDICIAL MEMBER                              ACCOUNTANT MEMBER

Date 10/10/2013
"SRBHATNAGAR"
Copy forwarded to: -
1.    Appellant 2.       Respondent          3.   CIT     4.     CIT (A)
5.    DR, ITAT
                             TRUE COPY
                                                  By Order,




                                                  Assistant Registrar,
                                                  ITAT, Delhi Benches


                                      4
    ITA NO. 5838/Del/2012




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