TaxTMI 
TaxTMI 
2012 (7) TMI 339
X X X X Extracts X X X X
X X X X Extracts X X X X
....ht to have been either issued to any member of the AOP appellant or even to the Chartered Accountant, who was the authorized representative of the assessee an AOP. 1.3 That the learned CIT(A) has failed to appreciate that, the assessee an AOP was constituted for a limited period and was constituted to exploit the liquor licenses granted by the Government of Haryana for the financial year 2007-2008 and as such notices of hearing ought to have been issued to the members of an AOP in accordance with law. 2. That in the alternative and without prejudice, the learned CIT(A) while disposing of the appeal ex-parte should have disposed of the appeal 'on merits' of the addition made computing the income at Rs.1,80,05,610/- and on the additions made disputed before him as were raised in the grounds of appeal by the appellant. The CIT(A) has further failed to appreciate that he was obliged in law to have disposed of the appeal on merits despite the fact that there had been non-appearance by the assessee. 2.1 That the learned CIT(A), while deciding the appeal of the assessee has failed to apply the provisions of section 250(6) of the Income Tax Act when he simply disposed of the appea....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Act was not leviable." 2. Facts, in brief, as per relevant orders are that return declaring income of Rs. 46,61,920/-filed on 30.09.2008 by the assessee, trading in liquor, was selected for scrutiny with the service of a notice u/s 143(2) of the Income-tax Act, 1961 (hereinafter referred to as the 'Act'),issued on 24.9.2009. During the course of assessment proceedings, the Assessing Officer (A.O. in short) noticed that the assessee, an AOP, comprising 19 partners having different shares, purchased liquor from various persons including licence holders for wholesale liquor which included IMFL. Total purchases were Rs. 16,00,89,326/- and sales Rs. 29,72,98,954/-. The entire sales were in cash except to M/s Palm Town & Country Club. Likewise entire expenses were incurred in cash. Besides purchases of Rs. 6,98,21,000/- were also in cash. In order to ascertain the genuineness of purchases, the AO issued summons u/s 131 & notice u/s 133(6) of the Act to 11 parties mentioned on page 2 of the assessment order. In response only, Gurgaon Liquor, a sister concern of the assessee responded. The AO observed on perusal of bills of few suppliers like Gurgaon Liquor Company, Locus Enterprises, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....essee on 27th December, 2010. In response the assessee replied as under:- "Sir, the state government of Haryana has only used the term "minimum sales price" in the Haryana Excise Policy 2007-08 which is in no way can be said to be the selling price. These prices are only indicative prices which has been mentioned in the policy document for attracting the new licencees to invest in the business of liquor in the State of Haryana to increase the revenue of State Excise. The liquor business of Haryana is highly competitive and driven by the market forces even the manufacturer's of all types of liquor (including country liquor, IMFL, Beer etc.) do not print any prices on the bottle/packaging itself. Actual bottles of different types of liquors are also being produced for your kind verification. Hence the "minimum sale price" used in the excise policy cannot be taken as the sale price. Further the sale excise policy has also defined the rule for lifting of quota at clause no.12.8 which is binding on the licencee and in case of failure to lift the quota the penalties has also been defined the same clause which are very stringent and can earn losses to the licencee. Hence in order to....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 3. In CIT Vs. B.N. Bhattacharya (1977) 118 ITR 461 (Supreme Court), the Hon'ble Apex Court while dealing with the issue of prosecution of appeal has stated that "preferring any appeal means more than formally filing it but effectively pursuing it." The Delhi Tribunal in CIT Vs. Multiplan India Pvt. Ltd. as reported in 38 ITD 320 (Delhi) when faced with a similar situation of non prosecution of appeal dismissed the appeal of revenue. 4. In the circumstances the appeal of the appellant is dismissed on account of non prosecution and no decision on merits is being given." 4. The assessee is now in appeal before us against the aforesaid findings of the ld. CIT(A). At the outset, both the parties agreed that matter requires consideration by the learned CIT(A), there being no findings on merit of the additions nor the ld. CIT(A) passed a speaking order on the various issues raised before him. To a query by the Bench, the ld. AR submitted that none of the notices issued by the ld. CIT(A) were received by the assessee and that ld. CIT(A) was not justified in disposing of the appeal in a summary manner without allowing sufficient opportunity to the assessee. 5. We have heard bo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bserved as under: "3. We have carefully considered the facts and circumstances of the case as well as submissions made before us. The impugned order passed by the CIT(A) is clearly violative of the express provisions of s. 250(6), which provides that the appellate orders of the CIT(A) are to state the points arising in the appeal, the decision of the authority thereon and the reasons for such decision. The underlying rationale of the provision is that such orders are subject to further appeal to the Tribunal. Speaking order would obviously enable a party to know precise points decided in his favour or against him. Absence of the formulation of the point for decision for want of clarity in a decision undoubtedly puts a party in quandary. Sec. 250(6) expressly embodies the principles of natural justice and such a provision is clearly mandatory in nature. The impugned order passed by the CIT(A) in violation of the provisions of s. 250(6) cannot, therefore, be sustained. Regarding the decisions of the Delhi Bench of the Tribunal in Multiplan India Ltd. (supra) cited by the learned CIT(A), we find that the said decision is clearly distinguishable. Sec 254 referring to the orders of t....