IN INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C, KOLKATA (Before Shri N.V.Vasudevan, J.M. & Dr.A.L.Saini, A.M.) ITA No. 601/Kol/2016 : Asstt. Year : 2010-11 M/s. Melcon (Vizag) Pvt.Ltd Vs Income Tax Officer, Ward C/o M/s. Baid & Company, 4(2),P-7 Chowringhee D.C.I.T., Chartered Accountants, Circle-12, Aayakar Bhawan, P- 10/C Ballygunge Circular Road, 7, Chowringhee Square, nd 2 Floor, Kolkata-700019. Kolkata 700 069 PAN: AACCM3631N (APPELLANT) (RESPONDENT) Assessee by : Shri: O.P. Baid, ,FCA,LLB, ld.AR Department by: Shri Pinaki Mukherjee, JCIT, ld.DR Date of Hearing : 19-09-2016 Date of Pronouncement:-23-09 - 2016 ORDER Per Dr. A.L.Saini, A.M.: captioned appeal filed by assessee pertaining to assessment year 2010-11, is directed against order passed by Commissioner of Income-tax (Appeals)-2, Kolkata in Appeal No. 1250/CIT(A)-2/2014-15, dated 05-02-2016, which in turn arises out of order passed by Assessing Officer u/s. 143(3) of Income-Tax Act, 1961 (in short, Act),dated 23-03-2013. 2. facts of case are stated in brief. assessee company furnished its return of income for assessment year 2010-11 by e-filing on 27-09-2010 for total income of Rs.2,80,147/-. return was duly processed u/s. 143(1). ITA No.601/Kol/2016 M/s. Melcon (Vizag)Pvt. Ltd 1 Subsequently, case was selected for scrutiny u/s. 143(3) of Act. Assessing Officer has completed assessment U/s 143(3) of Act, by making various additions on 23-03-2013. Assessing Officer disallowed rent charges at Rs.1,80,000/- and repair charges at Rs.32,591/-, holding that house was used exclusively for director s residence. 3. Aggrieved from order of Assessing Officer, assessee filed appeal before Commissioner of Income-tax (Appeals)-2, Kolkata, who has also confirmed action of Assessing Officer by observing following:- 2. appeal was fixed for hearing first on 10/12/2015. AR of assessee filed letter on 10/12/2015, seeking adjournment of hearing in 2nd week of January, 2016. Accordingly, hearing was re-fixed on 12/01/2016 and duly acknowledged. Nobody attended or filed any written submission till date. It is thus presumed that assessee is not interested to pursue appeal and has nothing to say in defence of grounds taken. AO made addition of Rs.2,12,591/- by disallowing rent charges and repair charges after due deliberation. There is nothing on record to controvert decision of AO. Therefore, addition of Rs.2,12,591/- is confirmed. 4. Not being satisfied with order of Commissioner of Income-tax (Appeals), assessee is in further appeal before us and has taken following grounds of appeal:- l. That in view of what is stated in Para 6 under head 'FACTS OF THECASE' annexed hereto and forming part hereof, Ld. CIT(A)- 2, Kol has erred in law as well as on facts in dismissing Appeal filed by your Appellant before him on alleged ground of non- appearance or non-filing of written submission by your Appellant on date fixed by him for hearing or upto date of his order dated 05.02.2016 and therefore confirming additions erroneously, unjustifiably and or illegally made by Ld. AO. ITA No.601/Kol/2016 M/s. Melcon (Vizag)Pvt. Ltd 1 2. That Ld. AO has erred in law as well as on facts by adding back / disallowing and Ld. CIT(A) - 2, Kol has also erred in law as well as on facts by upholding/ sustaining on alleged ground of said addition of Rs. 1,80,000/-- under head Rent for premises wholly, exclusively and or genuinely used by your appellant company for stay of its staff and visitors whether in transit or otherwise for business purposes. same should therefore be allowed in full. 3. That Ld. AO has erred in law as well as on facts by adding back and or disallowing erroneously, illegally and or unjustifiably on alleged ground and on estimate proportionate maintenance charges of Rs. 32,591/- for premises for which rent of Rs. 1,80,000/- as aforesaid was paid and Ld. CIT(A) - 2, Kol has also erred in law as well as on facts by upholding/ sustaining same on alleged ground. same should have been and therefore should be allowed in full. 4. That both impugned orders namely Assessment Order as well as Appellate order are without application of mind and or otherwise vexatious, arbitrary, based on surmises, guesses and conjectures, illogical and or unjustified and therefore illegal and/or void ab-initio and are liable to be quashed, set aside, cancelled, rescinded, annulled, amended, altered, revised, modified and/or otherwise nullified. 5. First ground of appeal relates to non appearance or non filing of written submission by assessee before Commissioner of Income-tax (Appeals), therefore, he passed ex-parte order without presence of assessee. 6. ld AR for assessee has submitted that, solitary grievance of assessee in this case is that ld CIT (A) has passed order without taking into account written submissions filed by assessee. order of ld CIT (A) is dated 05/02/2016. assessee filed its written submissions before ld.CIT(A), on dated 12/01/2016. assessee has adduced proof before us that written ITA No.601/Kol/2016 M/s. Melcon (Vizag)Pvt. Ltd 1 submissions were filed by him before ld CIT(A), well in advance on dated 12/01/2016 which have not been considered by him therefore action of ld.CIT(A) is against principle of natural justice. 6.1 ld.AR for assessee has further submitted that appeal was fixed for hearing on 10-12-2015. Then ld.AR of assessee filed letter on 10-12-2015 seeking adjournment of hearing in 2nd of January, 2016. Accordingly, hearing was re-fixed on 12-01-2016. assessee filed written submission before Commissioner of Income-tax (Appeals) on 12-01-2016,but Commissioner of Income-tax (Appeals) did not consider submissions of assessee at all, therefore it is gross negligence on part of ld CIT(A). 7. ld.DR for revenue has primarily reiterated stand as taken by Commissioner of Income-tax (Appeals), which we have already noted in our earlier para of this order, and is not being repeated for sake of brevity. 8. Having heard rival submissions, we are of view that there is merit in submissions of assessee, as propositions canvassed by ld.AR for assessee are supported by facts narrated above, it is very much clear that assessee has submitted written submission, but Commissioner of Income-tax (Appeals) has ignored it, which is tantamount to unjustice and against principle of natural justice. Therefore, we are of view that issue involved in this appeal requires fresh examination at end of Commissioner of Income-tax (Appeals). Accordingly, we set aside impugned order of Commissioner of Income-tax (Appeals) and restore this issue to his file with direction to decide issue afresh after giving proper opportunity of being heard to assessee. In view of above ITA No.601/Kol/2016 M/s. Melcon (Vizag)Pvt. Ltd 1 conclusion on preliminary issue, other grounds challenging additions made on merits are not taken into consideration. 9. In result, appeal filed by assessee is allowed for statistical purpose. Order Pronounced in Open Court on 23-09 -2016 Sd/- Sd/- (N.V.Vasudevan) (Dr. A.L.Saini) Judicial Member Accountant Member Dated:23/09/2016 *PRADIP (Sr.PS) Copy of order forwarded to: 1. Appellant/Assessee 2 Respondent/Revenue 3. CIT-I, 4. CIT(A)-I, 5. DR, Kolkata Benches, Kolkata True Copy, By order, Asst. Registrar, ITAT, Kolkata Benches ITA No.601/Kol/2016 M/s. Melcon (Vizag)Pvt. Ltd 1 M/s. Melcon (Vizag) Pvt. Ltd. v. Income-tax Officer, Ward-4(2), Kolkata