2013 (11) TMI 1630

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....mpany. 1.1 That the learned Commissioner of Income Tax (Appeals) while disposing of appeal expartee has failed to appreciate that appeal filed by the appellant company was part of a batch of appeals in the case of Rajdarbar group of cases and since counsel for the appellant had duly been appearing in other matters of Rajdarbar group of cases, there remained no occasion to hold that none appeared on behalf of the appellant company in response to notice u/s 250 of the Act and hence, disposal of appeal on expartee basis without granting opportunity to the appellant is unjustified and not valid in law. 2 That even otherwise the learned Commissioner of Income Tax (Appeals) has erred both in law and on facts in failing to appreciate that both t....

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....s not leviable on the facts and circumstances of the case of the appellant company." 2. At the hearing ld. Counsel for the assessee did not press ground no. 1 & 1.1, hence the same are rejected being not pressed. 3. Ld. Counsel for the assessee contends that the original assessment of the assessee was completed u/s 143(3) on 30-12-2008 in which similar additions were made. The computation is as under: "During the assessment proceedings, the authorized representative of the ae company submitted that assessment order u/s 143(3) of the act had been passed earlier by ITO, Ward 10(4), New Delhi. The copy of assessment order is produced and placed on record. In the above assessment order, the assessee's claim of filing fees of Rs. 6,100/- as r....

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.... income declared Rs. 10,308/- Add: Disallowance of expenditure of filing fees Rs. 6,100/- Add: Unexplained creditor, as discussed above Rs. 63,79,500/- Total income Rs. 63,95,908/-"   3.1. Against this order u/s 143(3), the assessee preferred appeal before the CIT(A) who vide order dated 30-9-2008 dismissed the assessee's appeal confirming the very same additions. Against the order of CIT(A) the assessee filed appeal before ITAT (ITA no. 4654/Del/09). As the assessee got no notice and failed to make appearance on the date of hearing, the same was dismissed on 9-12-2010 ex parte by applying the ITAT order in the case of CIT Vs. Multiplan (India) Pvt. Ltd. 38 ITD 320 (Del.). Qua this order the assessee moved application /s 254(2....

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....al and mechanically repeated only the same additions which are already made during the regular assessment and are pending adjudication in appeal before the ITAT. The additions which were subject matter of regular assessment and qua which no incriminating material is found during the course of search, cannot be made in view of Hon'ble Delhi High Court judgment and ITAT Mumbai Special Bench judgment (supra). Therefore, the additions should be deleted. 4. Ld. DR is heard. 5. We have heard rival contentions and perused the material available on record. As the facts emerge the assessing officer while framing the assessment u/s 153C and making these additions has not relied on any incriminating material. We find merit in the argument of ld. Cou....