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M/s Mittaso India Pvt. Ltd., Uklana Road, Narwana, Haryana 126116 Vs. ITO, Ward 6(4), New Delhi CR Building, IP Estate, New Delhi 2
November, 20th 2015
                                                                       ITA NO. 4659/Del/2013


                     IN THE INCOME TAX APPELLATE TRIBUNAL
                           DELHI BENCH "E", NEW DELHI
                    BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER
                                          AND
               SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER


                             I.T.A. No. 4659/DEL/2013
                                     A.Y. : 2009-10
M/s Mittaso India Pvt. Ltd.,                    ITO, Ward 6(4),
Uklana Road,                               VS. New Delhi
Narwana,                                        CR Building,
Haryana ­ 126116                                IP Estate, New Delhi ­ 2
(PAN AACCM9913B)
(APPELLANT)                                           (RESPONDENT)

              Assessee by                      :      Sh. R.S. Singhvi, Adv.
             Department by                     :      Sh. P. Dam Kanunjna, Sr. DR


                             Date of Hearing          19-11-
                                                   : 19-     2015
                                                          11-2015
                               Date of Order         19-11-2015
                                                   : 19-   2015


                                   ORDER

PER H.S. SIDHU : JM

      This    appeal by the Assessee is directed against the Order of the
Ld. Commissioner of Income Tax(A)-IX, New Delhi dated 24.9.2012 pertaining
to assessment year 2009-10 on the following grounds:-

      1(i)   That on the facts and circumstances of the case, the Ld. CIT(A) was
             not justified in passing exparte order without service of notice and
             proper and reasonable opportunity.

      (ii)   That even otherwise, the CIT(A) has passed order in total disregard
             to provisions of section 250(6) of the Income Tax Act, 1961 and



                                               1
                                                           ITA NO. 4659/Del/2013


       merely on presumption that the appellant is not interested in
       perusing the appeal.

2.     That on the facts and circumstances of the case, the exparte order
       passed by Assessing Officer is on        illegal and arbitrary     basis
       without proper service of the notice and application of mind.

3(i)   That estimation of net profit at 5% of gross receipt is highly arbitrary
       and in total disregard to past history of the case and audited books
       of accounts.




(ii)   That the AO has applied provisions of section 44AF on illegal and
       arbitrary basis even though the return was filed on the basis of
       audited accounts and tax audit report and even other wise
       provisions of section 44AF are not applicable.

4.     That CIT(A) has confirmed trading addition on mechanical basis
       without proper application of mind and adjudication of ground
       relating to addition in accordance with provisions of section 2150(6)
       of the I.T. Act, 1961.

5.     That on the facts and circumstances of the case, the CIT(A) was
       also not justified in confirming addition of      Rs. 40,94,854/- in
       respect of sundry creditors as sundry creditors were merely
       represented by purchases and there could be no factual or legal
       basis to presume that same represent undisclosed income.

6.     That the orders of the lower authorities are not justified on facts and
       same are bad in law.




                                   2
                                                               ITA NO. 4659/Del/2013


2.     The facts narrated by the revenue authorities are not disputed by both the
parties, hence, they are not repeated here for the sake of brevity.

3.    At the time of hearing, Shri R.S. Singhvi, Ld. Counsel for the assessee draw
our attention towards the assessment order dated 20.12.2011 passed u/s. 144
of the I.T. Act, 1961. He stated that the AO has not given opportunity to the
assessee for substantiating its claim before him. Further he stated that similarly,
Ld. CIT(A) has also decided the appeal of the assessee exparte without affording
opportunity to the assessee and wrongly upheld the exparte order passed by the
AO. Therefore, he requested that the issues in dispute may be set aside to the
file of the AO to decide the same afresh, under the law, after giving full
opportunity to the assessee.

4.    On the contrary, P. Dam Kanunjna, Sr. DR strongly opposed the request of
the assessee and stated that the assessee remained non-cooperative before the
AO as well as Ld. CIT(A), hence, the appeal of the Assessee may be dismissed
by upholding the action of the Ld. CIT(A).

5.    Shri Singhvi, Ld. Counsel for the assessee undertake on behalf of the
assessee to fully cooperate with the AO in the assessment proceedings and to
file all necessary evidences without wasting of further time and also assured the
Bench that he will appear before the AO as and when directed by this Bench.

6.    After hearing both the parties and perusing the relevant records available
with us, especially the order passed by the Revenue Authorities, we are of the
considered view that AO as well as Ld. CIT(A) has decided the issues in dispute
against the assessee without affording sufficient opportunity to the assessee. As
stated by the Ld. Counsel for the assessee that the assessee is having all
necessary evidences for substantiating its claim before the AO and also


                                         3
                                                                 ITA NO. 4659/Del/2013


undertake to fully cooperate in the assessment proceedings and to file the
necessary evidences for substantiating its claim before the AO without wasting of
further time. Keeping in view of the Statement given by the Ld. Counsel for the
assessee on behalf of the assessee and on the facts and circumstances of the
present case, we are of the considered view that the issues in dispute require
thorough examination at the level of the AO. Therefore, in the interest of justice,
we set aside the issues in dispute to the file of the AO to consider the same,
afresh under the law, after giving full opportunity of being heard to the assessee.
However, the Assessee is directed through its Counsel to appear before the
                               04.04.2016 at 10.30 AM to substantiate its
concerned Assessing Officer on 04.04.2016
claim, as requested by him.




7.     In the result, the Appeal filed by the Assessee stands allowed for statistical
purposes.

       Order pronounced in the Open Court on 19/11/2015, upon conclusion of
hearing.

       Sd/-                                                        Sd/-

[PRASHANT MAHARISHI]                                             SIDHU]
                                                           [H.S. SIDHU]
ACCOUNTANT MEMBER                                       JUDICIAL MEMBER

Date 19/11/2015
"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. 4659/Del/2013




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