AO should made proper classification before making addition and in PF condition under section 43B to fulfill to avoid addition

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH “B”, KOLKATA

[Before Hon’ble Sri C.D.Rao, AM & Hon’ble Sri George Mathan, JM]

ITA No.749/Kol/2012

Assessment Year: 2007-08

M/s. Nabisco Confectionery &

Food India Pvt. Ltd.

Kolkata

(PAN: AABCN 6222 D)

(Appellant)

. -Versus-

I.T.O., Ward-12(4),

Kolkata

 (Respondent)

For the Appellant: Shri S.M.Surana

For the Respondent: Shri Ajoy Kumar Singh

Date of Hearing: 25.06.2012.

Date of Pronouncement: 25.06.2012.

ORDER

Per Bench

This is an appeal filed by the assessee against order of the ld. CIT(A) –XXIV, Kolkata in Appeal No.965/CIT(A)-XXIV/12(4)/08-09 dated 29.02.2012 for Assessment Year 2007-08.

2. Shri S.M.Surana, ld. AR appeared on behalf of the assessee and Shri Ajoy Kr. Singh , ld. DR appeared on behalf of the revenue.

3. In this assessee’s appeal the assessee has raised the following grounds :-

“1. For that the order of the Ld. CIT (A) is arbitrary, illegal and bad in law.

2. For that the Ld. CIT)(A) erred in passing the order ex-parte without allowing the appellant a reasonable opportunity of being heard.

2. For that on the facts and circumstances of the case the Ld. C.I.T(A) was not justified in confirming the addition of Rs. 1,48,90,366/- to the book profit determined u/s 115JB of the I.T.Act.

3. For that on the facts and circumstances of the case the Ld. C.l.T(A) was not justified in confirming the addition of Rs. 1,48,90,366/- with processing charges without properly appreciating the facts that all the receipts were not on account processing charges and other facts giving rice to the discrepancy.

4. For that the Ld. C.I.T(A) has erred both in facts and in law in confirming the addition of Rs. 1,25,000/- U/s. 43B for delay in payment of P.F. contribution when the payment was made before the due date of filing of the return..

5. For that on the facts and circumstances of the case the order of the CIT(A) be modified and the assessee be given the relief prayed for.

6. For that the assessee craves leave to add, alter or amend any ground before or at the time of hearing.”

4. It was fairly agreed by both the sides that the assessment has been done exparte and there was also no representation before the ld. CIT(A). It was fairly conceded by the ld. AR that there was no representation. It was the specific undertaking by the ld. AR that the assessee would cooperate in the setting aside assessment if the assessee is being granted one more opportunity to represent his case before the AO.

5. The ld. DR had no objection to the said request of the ld. AR.

6. We have considered the submissions. As it is noticed that the assessment is an ex-parte assessment and also before the ld. CIT(A) there has been no representation. We are of the view that the assessee may be granted one more opportunity to substantiate its case before the ld. AO. It is also noticed that the ld. AR has specifically agreed that there would be no default on the part of assessee in de-novo setting aside assessment. In this situation the issue is restored to the file of AO for denovo assessment after granting the assessee adequate opportunity to substantiate its case. In the circumstances the appeal of assessee is allowed for statistical purposes.

7. In the result the appeal of the assessee is allowed for statistical purposes.

Order pronounced in the open court as dictated on 25.06.2012.

                                                     Sd/-                    Sd/-

                                          [George Mathan]     [C. D. Rao]

                                          Judicial Member Accountant Member

Date: 25.06.2012.

R.G.(.P.S.)

Copy of the order forwarded to:

1. M/s.Nabisco Confectionery and Food India Pvt. Ltd,., C/o Surana Company, P-38, India

Exchange Place, 3rd Floor, Arun Chamber, Kolkata-700001.

2 The I.T.O., Ward-12(4), Kolkata

3. The CIT- 4. The CIT(A)-XXIV, Kolkata

5. DR, Kolkata Benches, Kolkata

True Copy,

By order,

Deputy /Asst. Registrar, ITAT, Kolkata Benches