2012 (8) TMI 67

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..... The learned CIT(A) has erred in law and on facts in confirming the action of AO in framing the assessment order u/s.144 of the Act in gross violation of principles of natural justice. Both the lower authorities have erred in law and on facts in not properly appreciating and considering various submissions, evidences and supporting placed on record during the course of the proceedings and not properly appreciating various facts and law in its proper perspective."   2. Facts in brief as emerged from the corresponding assessment order passed u/s.144 of the I.T. Act, 1961 dated 15/12/2006 are that the assessee is a Private Limited Company and in the business of trading of chemicals. Return of income declaring loss of Rs.33,09,810/- wa....

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....s profit of Rs.50,43,731/-, in percentage terms, it is calculated at 11.00%, against which in the immediate two preceding years i.e. A.Y. 2003-04 and A.Y. 2002-03, the assessee had declared G.P. rate @ 19.81% and 25.46% respectively. This order is being passed, after verification of the details furnished by the assessee and providing all possible opportunities to the assessee. Following issues have been emerged during the course of assessment proceedings. 2.1. Thereafter, the Assessing Officer has noticed that for the year under consideration there was a decline in Gross Profit rate in comparison to the ratio of profit disclosed in the past. Vide para 3.2 the Assessing Officer has noticed that a show-cause notice was issued on 01/02/2....

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....assessment was completed on 15/12/2006, totally ignoring the natural justice, hence the assessee demands a proper right of hearing. 5. From the side of the Revenue, ld.Sr.DR Mr.B.L.Yadav has objected the contentions of the assessee and placed reliance on the orders of the Assessing Officer and Learned CIT(Appeals). 6. Having heard the submissions of both the sides, we have noticed that the assessee is not a habitual defaulter because the admitted factual position is that the accounts have been duly audited and thereupon a return has also been filed within the prescribed period. We have also noted that the Assessing Officer has admitted that the notices were complied with and representative of the assessee as well as one of the Directo....

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....y agreed upon orally to keep 17-12-06 as the next date of hearing. 4. When our consultant again went to the learned A.O.'s office on 17- 12-06 with all details & books of accounts, his office was found closed. He, accordingly, contacted the learned A.O. on his mobile phone. To his great surprise & stock, he was informed of the assessment having been finalized ex-parte u/s.144 of the Act. On being remained of the hearing having been mutually fixed for 17-12- 06 only, the learned A.O. showed his helplessness." 7. Having considered the submissions and the facts as narrated hereinabove, we are of the conscientious view that the assessee deserves reasonable opportunity of being heard. Therefore, following the decision of Hon'ble Supreme Co....