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M/s Biotropics Pharma Pvt. Ltd., Factory Address:- 76/II, Near Hanuman Mandir, DIC Baddi, Tehsil Nalagarh, Distt. Solan, HP VS. Income Tax Officer, Ward 3(1), New elhi
August, 14th 2014
                                        ITA NOS. 3063/Del/2013 & 363&364/Del/2014


            IN THE INCOME TAX APPELLATE TRIBUNAL
                  DELHI BENCH "C", NEW DELHI
          BEFORE SHRI R.S. SYAL, ACCOUNTANT MEMBER
                                 AND
               SHRI H.S. SIDHU, JUDICIAL MEMBER


                                 I.T.A. Nos.
                         3063/Del/2013       AND
                          363 & 363/DEL/2014
                         A.Y. : 2007-08, 2009-10
                                 & 2007-08
M/s       Biotropics          VS.                     Income Tax Officer,
Pharma Pvt. Ltd.,                                     Ward 3(1),
Factory   Address:-                                   New Delhi
76/II,         Near
Hanuman     Mandir,
DIC Baddi, Tehsil
Nalagarh,      Distt.
Solan, HP
(PAN:AABCB9858M)
(APPELLANT)                                           (RESPONDENT)

        Assessee by                 :    Sh. Rakesh Gupta, CA and
                                         Sh. Manoj Kumar, CA
       Department by                :    Ms. Y.S. Kakkar, Sr. D.R.

                            ORDER
PER BENCH


     These are the      appeals filed by the assessee emanate out
of the separate orders passed by the Ld. CIT(A)-VI, New Delhi
pertaining to respective     assessment years. Since some of the
issues involved in these appeals are common, we are therefore,
proceeding to dispose them off by this consolidated order for the
sake of convenience.


                                    1
                                    ITA NOS. 3063/Del/2013 & 363&364/Del/2014


2.   grounds raised in the ITA NO. 3063/DEL/2013 read as
under:-

          "1.   The Ld. CIT(A) is wrong in confirming the validity
                of assessment framed under section 144 by
                holding that various notices u/s. 143(2)/142(1)
                were issued to the appellant company at the
                address given in the IT return which were
                returned by postal authority with the remarks
                "no such concern" or "left" without information"
                but by ignoring the undisputed fact that notice
                u/s. 143(2) was not served on the assessee
                company or its directors which is mandatory
                requirement as per law.

          2.    The Ld. CIT(A) is wrong in confirming the
                additions made by the AO after rejecting the
                application of additional evidence under Rule
                46A by ignoring the fact that assessee was
                prevented by sufficient cause from producing
                the   information     during       the      assessment
                proceedings as none of the notices issued by
                the AO received by the company and its
                directors.

          3.    In view of all these and such other grounds,
                which may be taken at the time of hearing, the
                appeal may      please be allowed and justice
                rendered.



                                2
                                   ITA NOS. 3063/Del/2013 & 363&364/Del/2014


3.   The grounds raised in the ITA NO. 363/DEL/2014 read as
under:-

          1.   The Ld. CIT(A) is wrong in confirming the
               assessment framed u/s. 144 as notices sent u/s.
               143(2) /142(1) were not served on any director /
               principal officer or authorized person of the
               assessee company.




          2.   The Ld. CIT(A) is wrong in confirming the
               additions made by the AO after rejecting the
               application of additional evidences under Rule
               46A by ignoring the fact that assessee was
               prevented by sufficient cause from producing
               the   information     during       the      assessment
               proceedings as notices sent u/s. 143(2)/142(1)
               were not served on any director/ principal officer
               or authorized person of the assessee company.

          3.   The Ld. CIT(A) is wrong in confirming the order
               made u/s. 144 of the AO as the assessment
               order was sent to the premises of the assessee
               company on 20.1.2012 i.e. after the expiry of
               time limit prescribed under the Act.

          4.   In view of all these and such other grounds,
               which may be taken at the time of hearing, the
               appeal may      please be allowed and justice
               rendered.




                               3
                                        ITA NOS. 3063/Del/2013 & 363&364/Del/2014


4.    The grounds raised in the ITA NO. 364/DEL/2014 read as
under:-

           1.    The Ld. CIT(A) is wrong in confirming the
                 penalty under section 271(1)(c) by rejecting the
                 admission of additional evidence under Rule
                 46A     ignoring   the    fact    that     assessee       was
                 prevented by sufficient cause from producing
                 the information during the penalty proceedings
                 because of non receiving of notices causing non
                 awareness of penalty proceedings.

           1.1 That the Ld. CIT(A) on the one hand accepted
                 the reason for delay in filing the appeal, on the
                 other    hand,     refused       to   admit       additional
                 evidences which could not be filed due to same
                 reasons as were for the delay in filing appeal.

      2.   The Ld. CIT(A) is further wrong in confirming the
           penalty u/s 271(1)(c) on the additions made by the
           AO on arbitrary and estimated basis.

      3.   In view of all these and such other grounds, which
           may be taken at the time of hearing, the appeal may
           please be allowed and justice rendered.

ITA   NOS.      3063/DEL/2013       (2007-
                                    (2007-08)       AND      363/DEL/2014
(AY.2009-
(AY.2009-10)

5.    As regard ground no. 1 in both the appeals regarding not
serving of notices upon the authorised person of the assessee
company is concerned. During the hearing, the Ld.                     Counsel

                                    4
                                    ITA NOS. 3063/Del/2013 & 363&364/Del/2014


for the assessee has not pressed the same, hence, the same is
dismissed as not pressed.

6.   As regards    ground no. 2 regarding              confirming       the
additions made by the AO after rejecting the             application of
additional evidence under Rule 46A by ignoring the fact that
the assessee as prevented by sufficient cause from producing
the information during the assessment proceedings as none of
the notices issued by the AO received by the company and its
directors.

7.   Briefly stated facts are that the assessee company has
filed its return of income for the relevant Asstt. year 2007-08 on
30.9.2007 declaring income of Rs. 22,05,376/-. Subsequently,
the case was selected for scrutiny and notice u/s. 143(2) of the
IT Act was issued by speed post on 22.9.2008 fixing the case
for hearing on 26.9.2008.   There was no compliance from the
assessee.    Further notices u/s. 143(2) and 142(1) along with
annexure giving the list of details required were issued on
13.7.2009 fixing the case for hearing on 25.8.2009.                  Again
there was no compliance to these notices by the appellant.
Thereafter, notice u/s. 142(1) dated 11.11.2009 was issued to
the assessee and also to the Directors at the addresses given in
the income tax return.      There was no compliance to these
notices also. Finally, a notice u/s 142(1) was again issued on
4.12.2009 and was served by affixture at the address of the
company. An Inspector was also deputed to verify the address
of the company and he reported that the said company does
not exist at the given address. Thus this notice was not
complied with.    The AO requisitioned the P&L account and
                                5
                                     ITA NOS. 3063/Del/2013 & 363&364/Del/2014


balance sheet of the assessee company from the Registrar of
Company, New Delhi and in the absence of any compliance by
the assessee, he passed order u/s. 144 making the various
disallowances.

8.    Against the above order, assessee appealed before the Ld.
CIT(A) and sought permission for admission of additional
evidences under Rule 46A on the ground that notices u/s.
143(2) and 142(1) of the I.T. Act were not received by the
assessee company.       After elaborate considerations, Ld. CIT(A)
rejected the request of the assessee in admitting the additional
evidences and accordingly, confirmed the additions made by
the AO.

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

10. We have heard both the counsel and perused the records.
Ld. Counsel of the assessee has filed a Paper Book containing
pages 1 to 14 having      lower authorities records and copy of
affidavit   regarding   non    service     of    notices       sent      u/s.
143(2)/142(1) filed during stay proceedings. Ld. Counsel of the
assessee has stated that       the AO has passed the exparte
assessment u/s. 144 and made the         various additions without
providing any adequate opportunity to the assessee. Similarly,
Ld. CIT(A) has not even admitted the additional evidence and
also confirmed the additions made by the assessee.                 He also
stated that sufficient opportunity was not given by the
authorities below to substantiate its claim.        Ld. Counsel of the
assessee has fairly admitted that the address of the assessee

                                 6
                                     ITA NOS. 3063/Del/2013 & 363&364/Del/2014


company has been changed, buy assessee has not been able to
inform about the same to the concerned Assessing Officer. He
further submitted that the Ld. CIT(A) has wrongly fully rejected
the plea of admitting of additional evidences which is against
the principles of natural justice.     Ld. Counsel requested that
now the assessee is in a position to produce all the necessary
documents / evidences to substantiate its claim, therefore, he
may be granted one more opportunity to canvass its case
before AO and accordingly, the issue may be remitted back to
the file of the AO to consider the same afresh, after considering
all the necessary documents/ evidences.

10.1 Ld. D.R. has also filed a Paper Book containing pages 1 to
111 by way of which various          documentary evidences have
been attached.   She submitted that the AO has given sufficient
opportunity to the assessee for substantiate its claim, but he
never complied with the      notices and hence, AO has rightly
passed the exparte assessment order u/s. 144 and made the
additions. She also stated that Ld. CIT(A) has also rightly not
admitted the additional evidences and confirmed the additions
made by the AO. In support of her contention, she cited the
judgment reported in 249 ITR 68 (Del) and Punjab and Haryana
High Court decision in VRA Cotton Mills (P) Ltd. vs. UOI (359
ITR 495).   Accordingly, she requested that the order of the
lower authorities on this issue may be upheld.

10.2 In view of the above, we find that Ld. DR has argued on
the validity of service of notice. However, Ld. Counsel of the
assessee has stated that he has not received any notice and
regarding the information of         change of address was not
                                7
                                     ITA NOS. 3063/Del/2013 & 363&364/Del/2014





communicated to the concerned Assessing Officer.                  We find
that the judgment cited by the Ld. DR is of no helpful. In the
background of the aforesaid detailed discussions, we find
considerable cogency in the assessee's submissions that he has
not served the notices and also in the interest of natural justice,
we are of the considered view that one more opportunity may
also be granted to the assessee to substantiate its claim before
the AO. Accordingly, we remit this issue to the file of the AO
with the direction to decide the same afresh.         We also directed
to the assessee that he shall produced all the relevant
documents to the AO to enable him to decide the issue.

12. In the result,        the appeal nos. 3063/Del/2013 and
3063/Del/2014 are partly allowed for statistical purposes.

                     (2007-08)
ITA NO. 364/DEL/2014 (2007-

13. Since we have remitted the main issue relating to

additions made in ITA No. 3063/Del/2013 (A.Y. 2009-10) and

ITA No. 363/Del/2014 (A.Y. 2009-10) as above to the file of the

AO for fresh adjudication. The effective issue relating to penalty

u/s. 271(1)(c) in this appeal is now consequential in nature and

the same is also set aside to the file of the AO with the direction

to decide the same, as per law.       In the result,          the appeal

filed by assessee stands allowed for statistical purposes.




                                 8
                                       ITA NOS. 3063/Del/2013 & 363&364/Del/2014


14. In the result, ITA No. 3063/Del/13            & 363/Del/2014           are

partly allowed for statistical purpose and ITA No. 364/Del/2014

is allowed for statistical purposes.


      Order pronounced in the Open Court            13-8-2014.


      Sd/-                                            Sd/-


[R.S. SYAL]                                                 SIDHU]
                                                      [H.S. SIDHU]
ACCOUNTANT MEMBER                                   JUDICIAL MEMBER
Date 13/8/2014
"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




                                 9

 
 
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